
    BENGE v. STATE.
    (No. 11506.)
    Court of Criminal Appeals of Texas.
    April 11, 1928.
    t. Criminal law <§=>400 (7) — Testimony of short shipment, as shown by waybill in witness’ possession, held inadmissible.
    In prosecution for theft of goods from box car, testimony that goods in question checked short in shipment as shown by waybill in witness’ possession held inadmissible, since secondary evidence of contents of waybills could not be shown by oral testimony, where originals were shown to be in existence and in possession of party testifying.
    2. Larceny <®=o23 — Where property worth $50 is stolen in one county and portion thereafter taken into another county is less than $50, party cannot be convicted in latter county of felony (Code Cr. Proc. 1925, art. 197).
    Where property of $50 or over in value is stolen in one county and portion of such property thereafter taken into another county is less than $50, such party cannot be convicted in latter county of felony under Code Or. Proc. 1925, art. 197, and refusal to submit issue where evidence raised such issue held error.
    3. Criminal law <@=>775(2) — Refusal to charge on defense of alibi where evidence raised issue held error.
    In theft prosecution, in which defendant showed by numerous witnesses that he was at home at time of original taking and transportation of property into O. county, refusal to charge on defendant’s defense óf alibi held error.
    Appeal from District Court, Cherokee County; C. A. Hodges, Judge.
    
      Emmett Benge was convicted of theft, and he appeals.
    Reversed and remanded.
    Guinn & Guinn, of Rusk, for appellant.
    A. A. Dawson, State’s Atty., of Austin, «for the State.
   MARTIN, J.

Offense, theft of property of the value of $50 or over; penalty, two years in the penitentiary.

It was shown by the state that a box car containing merchandise en route from St. Louis to Taylor, Tex., was entered at Troupe, Smith county, Tex., and a quantity of goods taken therefrom. The appellant and his brother, together with one William Fea-gin, were charged with the offense of theft of this property in Cherokee county, Tex.

To prove that goods were taken from said box car while en route between the points mentioned, the state introduced the witness J. R. Wheeler, who testified over objections that some of the goods in question checked short as shown by the waybill in his possession. It was nowhere shown that this witness had any personal knowledge of the goods which went into the car originally, and the effect of his testimony was to get secondary evidence of the contents of such waybills or invoices before the jury without producing the originals. Under the proof made in this case, the originals themselves would not have been admissible. As said in the case of Lee v. State, 100 Tex. Cr. R. 664, 274 S. W. 582:

“Manifestly the documents could not prove theméelves, and, in the absence of some witness who from his own knowledge could verify and prove them up, the bill of exceptions presents no error.”

See, also, Williams v. State, 84 Tex. Cr. R. 524, 208 S. W. 924; Stevens v. State, 68 Tex. Cr. R. 145, 150 S. W. 942; McCunico v. State, 61 Tex. Cr. R. 48, 133 S. W. 1047.

Even if the originals had been proven up in such a way as to have rendered them admissible, it is apparent that secondary evidence of their contents could not be shown by oral testimony where the originals were shown to be in existence and in possession of the party testifying. Discussing the rule, it has been said:

“The meaning of the rule is, not that courts require the strongest possible assurance of the matters in question; but that no evidence shall be admitted, which, from the nature of the case, supposes still greater evidence behind in the party’s possession or power; because the absence of the primary evidence raises a presumption that, if produced, it would give a complexion to the case at least unfavorable, if not directly adverse, to the interest of the party.” Jones, Commentaries on Evidence, § 200, vol. 2, p. 173.

Under article 197, O. C. P. 1925, where property is stolen in one county and carried by the offender into another county, the prosecution may be in either county. The evidence raises the issue that this property which was over the value of $50 was stolen in Smith county, and part of it carried subsequently into Cherokee county, where the prosecution was instituted. Appellant makes the point that unless property of the value of $50 or more was carried by the thief into Cherokee county, no conviction could be had in said last-mentioned county for a felony, and submission of this issue was requested by the appellant and refused by the court. The evidence of the state’s witnesses clearly raised the issue, if it did not conclusively show, that less than $50 worth of the property theretofore stolen was carried into Cherokee county. Appellant seems to have been connected by the evidence with carrying stolen propérty into Cherokee county of the value of not over $30 to $35. We think the law is well settled in Texas that where property of $50 or over in value is stolen in one county and the portion of such property thereafter taken into another county by the thief was less than $50, such p’arty cannot be convicted in the latter county of a félony. Roth v. State, 10 Tex. App. 27; Ballow v. State, 42 Tex. Cr. R. 263, 58 S. W. 1023.

Appellant showed by numerous witnesses that he was at home at the time of the original taking and transportation of the property into Cherokee county. The court re- ■ fused to charge on appellant’s defense of alibi. The issue was clearly raised, and the court’s action was erroneous. Ballentine v. State, 52 Tex. Cr. R. 369, 107 S. W. 546; Branch’s P. C. § 55.

Eor the errors discussed, the judgment of the trial court is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals, and approved by the court. 
      <§^?For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     