
    ROBINSON v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1911.)
    1. Criminal Law (§ 466*) — Opinion Evidence — Cross-Examination.
    In a trial for stealing a bicycle, a dealer, after testifying on direct examination that a bicycle costing $65 new, if used three months, would be worth about $40, depending on the care taken of it, was properly permitted on cross-examination to state that, if used 2 months and 20 days and taken good care of, the bicycle would be worth “something like $50.”
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1056; Dec. Dig. § 466.*]
    2. Criminal Law (§ 464*) — Opinions—Examination of Witness.
    In a trial for stealing a bicycle, a dealer having testified that he would deem a bicycle in certain condition worth about $40, it was not error to exclude a question asked him jis to whether it would find a purchaser at $50.
    [Ed. Note. — For other eases, see Criminal Law, Dec. Dig. § 464.*]
    3. Criminal Law (§ 1090*) — Appeal-Bill of Exceptions — Necessity.
    Rulings on evidence are not reviewable, in the absence of bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2816; Dec. Dig. § 1090.*]
    4. Larceny (§ 79*) — Instructions—Nature of Offense.
    In a larceny trial, it was proper to instruct that before convicting of felony it must be found beyond reasonable doubt that the bicycle stolen was of the reasonable cash market value of $50 or over, and that if accused was deemed guilty beyond reasonable doubt, but the jury had reasonable doubt as to such value, he should be convicted of petty theft.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 187, 188; Dec. Dig. § 79.*]
    Appeal. from District Court, McLennan County; Richard I. Munroe, Judge.
    Ollie Robinson was convicted of larceny, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen.; for the State.
   HARPER, J.

Appellant was indicted, charged with the theft of property of the value of $51. He was convicted, and his punishment assessed at two years’ confinement in the penitentiary.

There are but two bills of exception in the record, and both relate to the testimony of W. J. Dorsett, a witness for appellant. On cross-examination (after the witness had testified, on direct examination, that a bicycle which cost $65 when new, if used for three months, would be worth about $40; that the value, in a great measure, depended on the use and care taken of the property), the state asked him, “If a bicycle is worth $65 when it is new, and it was used 2 months and 20 days, and good care taken of same, what would you consider same to be worth?” to which the witness answered, “I think it would be worth something like $50.” This witness had testified he was a dealer in bicycles and familiar with the market value of both new and secondhand machines. The court did not err in admitting this testimony. On direct examination, counsel for appellant asked the witness: “Suppose, Mr. Dorsett, that the bicycle in question, taking into consideration the length of time that it had been used, and your knowledge of secondhand values, had been placed in your bicycle store, and priced for sale at $50, would same find a purchaser?” The witness had testified that he would “consider the machine worth about $40; to the dealer the bicycle would hardly be worth as much as $40.” And we do not think the court erred in sustaining the objection.

These are all the bills of exception to the admission and rejection of testimony, and the grounds in the motion complaining of the admissibility of other testimony cannot be reviewed by us, in the absence of a bill of exceptions.

This was a case of circumstantial evidence, and it was proven that the bicycle was found in appellant’s possession; that from the time it was stolen to its recovery it had been painted a different color, and the paint so used as to obliterate the number on the machine. By rubbing off the paint the number could be seen, and was positively identified both by the owner and the dealer selling it. The court’s charge on circumstantial evidence is not subject to the criticism of appellant. It fully presents the law on this question.

Neither is the charge on felony theft and misdemeanor theft subject to the criticism contained in the motion. The jury is informed that, before they would be authorized to convict appellant of a felony, they must find beyond a reasonable doubt that the bicycle was of the reasonable cash market value of $50 or over at the time and place of the alleged offense; and in the charge on misdemeanor theft they are instructed: “If you believe from the evidence beyond a reasonable doubt that defendant is guilty, but have a reasonable doubt whether said bicycle was of the reasonable cash market value of $50 or over at the time and place of the alleged offense, you will give the defendant the benefit of such reasonable doubt, and not convict' him of theft otf the value of property of $50 or over, but convict him of petty theft — that is, of the theft of property under the value of $50.” The jury could not have been misled by this charge.

The defendant, on cross-examination of the witness Josephine Kobinson, proved that appellant told her he had purchased the machine from a white woman. The court fairly submitted this issue to the jury, and, as this evidence was introduced by defendant, the state was in no way bound thereby.

The judgment is affirmed.

DAVIDSON, P. J., absent  