
    BOYD v. STATE.
    (No. 11853.)
    Court of Criminal Appeals of Texas.
    June 20, 1928.
    I. Criminal law <§=>662(4) — In prosecution for theft by bailee, rejection of deputy sheriff’s affidavit stating value of automobile as $75 held proper.
    In prosecution for theft by bailee, refusal ■-to permit defendant to introduce an affidavit •sworn to by deputy sheriff stating value of the alleged stolen car as $75 held proper.
    :2. Criminal law <§=>814(31) — Refusal to instruct on issue not supported! by any evidence held proper.
    Refusal .to give instruction on issue not supported by any evidence held proper.
    3. Larceny <§=>15(2) — In prosecution for theft by bailee, fraudulent intent to appropriate need not exist in defendant’s mind at time of taking.
    In prosecution for theft by bailee, it is not necessary that there exist in defendant’s mind at the time of the taking any fraudulent intent to appropriate.
    4. Larceny <§=>46 — Exclusion of indictment charging theft by bailee of automobile valued at $75, and complaining witness’ testimony before grand jury to same effect, held not error.
    In prosecution for theft by bailee, exclusion of indictment charging defendant with theft of Ford automobile of the value of $75, and evidence that complaining witness had testified before grand jury that value of car was $75, held not error, where testimony before jury showed value of car as $30.
    Appeal from Fannin County Court; O. A. Wheeler, Judge.
    G. W. Boyd was convicted for misdemeanor theft, and he appeals.
    .Affirmed.
    G. W. Boyd, in pro per.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   DATTIMORE, J.

Conviction for misdemeanor theft; punishment, a fine of $25 and ten days in the county jail.

Appellant borrowed a car from Paul James in Fannin county, Tex., telling him that he would bring the car back in a couple of hours. Some time later the car was located by officers and found in Bryan, Tex., something like 100 miles from the place where same was borrowed. Appellant was located in Houston and arrested. Aside from some testimony tending to reflect, upon James, and as affecting the value of the alleged stolen car, appellant offered no testimony.

Appellant seems to have defended himself, and presented several special charges which were inaptly drawn and do not present correct principles of law, and some of same were unsupported by any testimony. There are several bills of exception, but none of same present any matter of serious import. Bill No. 1 complains of the refusal of the court to let appellant introduce an affidavit sworn to by a deputy sheriff stating the value of the car as $75. The court’s rejection of this was correct. One bill complains of the refusal of the court to give a special instruction that if appellant held the car subject to the rights of the owner, and not adversely, he should be acquitted. There is no suggestion of any testimony calling for the submission of such charge. There is a bill of exceptions complaining of tie refusal of the court to instruct the jury that if any witness agreed with defendant that, defendant should pay for the property in question, sucli witness would be an accomplice. There is no testimony that any one made any such agreement with the defendant.

A special charge was ashed that if the jury found from the evidence that no fraudulent intent existed at the very time of the conversion, appellant should be found not guilty. The charge in this case was- theft by bailee. In such case it is not necessary that there exist in the mind of the accused, at the time of the taking, any fraudulent intent to appropriate. One bill complains of the refusal of the court to allow in evidence an indictment charging appellant with the theft of a Ford automobile of the value of $75. We do not see any error in the rejection of this testimony. Appellant offered to show by the foreman of the grand jury that the complaining witness had testified before the grand jury that the value of the car alleged to have been stolen was $75. We fail to perceive the materiality of such testimony. The testimony before the jury showed that the value of the car was $30. We have carefully examined the entire record, and find no error therein.

The judgment will be affirmed. 
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