
    McDONALD et al. v. STATE.
    (Court of Criminal Appeals of Texas.
    April 16, 1913.)
    1. Criminal Law (§ 1131) — Appeal—Dis-missai>-Escape.
    Where defendant pending his appeal has escaped from custody, his appeal will be dis<missed.
    [Ed. Note. — For other cases, see Criminal Law, Cent Dig. §§ 2971-2979, 2985; Dec. Dig. § 1131.]
    2. Criminal Law (§ 200) — Defenses—Different Offenses in Same Transaction.
    Under the express provision of Pen. Code 1911, art. 1317, a conviction of burglary of a box car would be no bar to a prosecution for theft of goods after the entry had been effected.
    [Ed. Note. — For other- cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. § 200.]
    3. Judgment (§ 751) — Conclusiveness — Criminal Prosecution.
    The fact that an indictment for burglary alleged possession' of the premises in one person and that an indictment for theft growing out of the same transaction alleged possession of the goods in another person would not necessarily present a variance.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 1309, 1310; Dec. Dig. § 751.]
    4. Larceny (§ 32) — Property Subject to Larceny — Possession.
    A railroad yardmaster having the care and control of freight at a certain point had the legal possession of goods in cars there.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 81-92, 99; Dec. Dig. § 32.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    John McDonald and George Harper were convicted of theft, and, they appeal.
    Appeal of McDonald dismissed, and judgment as to Harper affirmed.
    See, also, 152 S. W. 1061.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellants were jointly indicted and prosecuted, charged with theft of property over $50 in value, and the punishment assessed against each was four years’ confinement in the penitentiary.

Pending this appeal affidavits have been placed on file in this court showing that McDonald escaped from custody. Consequently the appeal as to him will be dismissed. -

■ At the time of their arrest appellants were found in possession of the stolen goods in Harris county, and we think the other circumstances in evidence are sufficient to justify the jury in coming to the conclusion that they were stolen from the cars while they were stopped at the division near Sellars, in Harris county.

The fact that appellants had also been convicted of burglary of this box car would be no bar to the prosecution for theft of goods after the entry had been effected. Article 1317, Penal Code.

We cannot know under the record in this case in whom the evidence in the burglary trial showed the car to be in possession of, and the fact that the indictment in that ease alleged possession in a different person from whom the possession of the stolen goods are alleged in this indictment would not necessarily present a variance; in fact, it frequently occurs that a burglarious entry is made in one person’s house and goods of another stolen after the entry.

Without attempting to pass on the sufficiency of the proof in the other case in which appellants were charged with burglary of a house belonging to Englehart, in this case the evidence sufficiently shows that Holdner was legally in possession of the goods stolen; he being yardmaster at Sel-lars, having the care and control of freight at that point — a division point.

The judgment is affirmed as to George Harper.  