
    BURTON v. STATE.
    (Court of Criminal Appeals of Texas.
    June 21, 1911.)
    1. Criminal Law (§ 1090) — Appeal — Bill of Exceptions — Necessity.
    Where the record contains neither statement of fact nor bills of exception, errors in the admission of testimony cannot be reviewed.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2804, 2862; Dec. Dig. § 1090.]
    2. Criminal Law (§ 883) — 'Verdict—Sufficiency— Grade of Offense.
    The indictment charged accused with the theft of a watch of the value of $135 and also $31 in money. The court submitted two phases of theft — first, theft of property over $50; second, that under $50. The following verdict was returned: “We, the jury, find the defendant guilty as charged in the indictment and assess his punishment at 4 years’ confinement in the penitentiary.” Held, that the verdict showed that the defendant had been convicted of a felony.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2104r-2106; Dee. Dig. § 883.]
    
      3. Criminal Law (§ 1038) — Presentation of Grounds of Review in Court Below.
    Accused cannot on appeal complain of a charge to which no objection was made in the court below.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    4. Criminal Law (§ 1186) — Appeal—Harmless Error.
    In the absence of a statement of facts, the appellate court cannot determine that an erroneous instruction was prejudicial to the rights of accused, and so it must be taken as harmless error, for Code Cr. Proe. 1895, art. 723, prohibits the appellate court from reversing a case unless an error was prejudicial.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1186.]
    Appeal from District Court, Bexar County; Edward Dwyer, Judge.
    Webber Burton, alias Stafford Maryland, was convicted of theft, and appeals.
    Affirmed.
    Shelley Grover, Wm. S. Anthony, and H. B. Leonard, for appellant.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted by the grand jury of Bexar County for theft of property, to wit, one watch, of the value of $135, and $31.75 in money. He was convicted; the following being the verdict : “We, the jury, find the defendant guilty as charged in indictment and assess his punishment at four years’ confinement in the state penitentiary.”

There is no statement of facts nor bills of exception contained in the record. There is but one ground of the motion for new trial, and that is a complaint that the court erred in admitting the testimony of some witnesses which it seems tended to prove other offenses of the appellant. In the absence of statement of facts or bill of exceptions, this ground cannot be considered.

However, the appellant presents what he claims to be a fundamental error as to the verdict of the jury, and has filed an interesting brief, which shows considerable research of the decisions and principles claimed to be applicable to the insufficiency of this verdict. 1-Ie cites in support of his contention that this verdict is insufficient Slaughter v. State, 24 Tex. 410, Buster v. State, 42 Tex. 315, and McCloud v. State, 37 Tex. Cr. R. 237, 39 S. W. 104. Each of these cases were murder cases in which the court submitted the various offenses in some or all of them of murder in the first and second degree, manslaughter, etc., wherein the verdicts in those particular cases were held insufficient because the jury did not designate which grade of the offense they found the defendant guilty of. These cases are not in point, because the statute in such cases expressly requires that the jury shall find by their verdict whether it is murder of the first or second degree. Penal Code 1895, art. 712. In all other cases the statute requires that the verdict must be general. Article 750, Code Criminal Procedure. Appellant also cites Lee v. State, 41 Tex. Cr. R. 557, 55 S. W. 814, and Moody v. State, 52 Tex. Cr. R. 232, 105 S. W. 1127. In these cases the charge was aggravated assault. In both aggravated assault and simple assault were submitted in the charge, and the verdict was general, assessing a fine of $25 in each case. This court in those cases held that the verdict was too indefinite to sustain the judgment because the fine assessed was the lowest for aggravated assault, and the highest for simple assault, and that it was impossible to tell therefrom whether the verdict convicted the appellant of aggravated or simple assault. In these cases it was expressly held that, if the issue of aggravated assault alone had been submitted, the verdict would have been sufficient. Hence we regard neither of these cases in point.

It is true that in this case the court submitted both phases of theft — first, theft of property of $50 or over; and, second, petty or misdemeanor theft. .The indictment itself charged a felony only as shown above. The verdict of the jury being general and fixing the penalty for the felony, it is not only reasonable to conclude from the verdict that the jury convicted the appellant of a felony, but no other reasonable deduction can be drawn therefrom, and there is no uncertainty in the verdict of the jury. It expressly states that they found defendant guilty “as charged in the indictment.” Appellant again cites us to the case of Guest v. State, 24 Tex. App. 530, 7 S. W. 242, which was a case of theft, and probably would have been in point in this case, but this ease was expressly overruled in the case of McGee v. State, 39 Tex. Cr. R. 190, 45 S. W. 709, in a well-considered and entirely satisfactory opinion to us on the subject. It is now the well-established doctrine of this court, and is clearly the law applicable to the construction of verdicts, that they are to have a reasonable intendment and construction, and are not to be avoided, unless from necessity originating from doubt of their import or immateriality of the issue found. Walker v. State, 13 Tex. App. 618; McMillan v. State, 7 Tex. App. 100; Bland v. State, 4 Tex. App. 15; Williams v. State, 5 Tex. App. 226; Partain v. State, 22 Tex. App. 100, 2 S. W. 854. And that in construing a verdict the object is to arrive at the meaning of the jury. Chester v. State, 1 Tex. App. 703. Technical and unsubstantial objections to a verdict will not be considered in determining its sufficiency. Reynolds v. State, 17 Tex. App. 413, and cases cited above.

Therefore, both on reason and authority, we hold that the verdict in this ease is not uncertain, but clearly finds the defendant guilty of theft of property over the value of |50. McGee v. State, 39 Tex. Cr. R. 190, 45 S. W. 709; Vincent v. State, 10 Tex. App. 330; Cohea v. State, 11 Tex. App. 153.

A second claimed fundamental error in appellant’s brief, which in no way was set up in the court below, is that the court failed to charge the jury upon features essential to the crime of theft, in that the court charged a fraudulent taking consisted of an unlawful taking of property of another, without the consent, and with the knowledge on the part of the defendant that the property did not belong to defendant, and that he knew he had no right to the same, and claiming that the court wholly failed to charge that the taking must be stealthy or without the knowledge of the owner or person in possession thereof.

Even if it he conceded that the charge of the court on this subject may not have been technically correct, no complaint whatever having been made of this charge or any other in the court below, it is too late to make it here.

Besides, article 723 of the Code of Criminal Procedure prohibits this court from reversing the case unless the error was calculated to injure the rights of the defendant. There being no statement of facts in this case, clearly we cannot determine that the error, if error, complained of was calculated to injure the rights of the defendant, hut, on the contrary, we think it was not.

The judgment will therefore be in all things affirmed.  