
    WINSTON v. STATE.
    (No. 7880.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.)
    1. Criminal law <&wkey;>404(4) — Dies found on accused charged with stealing automobile held properly admitted.
    ■ In a prosecution for stealing an automobile, admission in evidence of dies found on accused at the time of his arrest, and identified by him when testifying as those found on his person, was not error.
    2. Larceny «&wkey;68( I) — Whether or not accused charged with theft of automobile had dies to change numbers on car held for jury.
    Whether accused charged with the theft of an automobile had dies in his possession at the time of his arrest- to change the numbers on the car to evade its identification, or whether he had them by reason of having found them on the coil box as testified by him, helé for jury.
    3. Criminal law <&wkey;775(2) — Instruction to be given when alibi is defense.
    Where the defense of accused charged with the theft of a ear was an alibi, it was the imperative duty of the trial court to instruct that if the jury had reasonable doubt as to the presence of accused at the time and place that the car was taken, if at all, they should find him not guilty.
    4. Criminal law <&wkey;763, 764(6) — Instruction with reference to accused’s possession of stolen car held not on weight of evidence.
    Where, in a prosecution for theft of an automobile,' accused did not deny that he was in the alleged stolen .car when arrested, he having admitted he raised the hood and looked at the engine before getting in. the car, an instruction that possession, if in fact true, would not authorize his conviction unless he had participated in the taking of the car, was not on the weight of the evidence.
    5. Criminal iaw &wkey;»775(3) — Instruction held sufficiently to present law of alibi.
    In a prosecution for theft of a car, an instruction that, if the jury had a reasonable doubt as to the presence of accused at the time and place when and where the witness testified his automobile was taken, the jury should find accused not guilty, substantially and sufficiently presented the law of alibi, though the instruction was not in the exact language of approved charges.
    6. Criminal law <&wkey;>1066 — Exception generally to court’s refusal of motion for new trial presents nothing for review; exceptions to rule stated.
    An exception generally to the court’s refusal of a motion for a new trial is not necessary and brings nothing before the Court of Criminal Appeals for review unless there are some matters occurring during the trial which are brought before the appellate court by the hearing of additional testimony in support of the motion for new trial, such as misconduct of the jury, etc. ■ ,
    Appeal from District Court, Jones County; W. R. Chapman, Judge.
    Jesse E. Winston was convicted of theft, and appeals.
    Affirmed.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was conviqted in the district court of Jones county of theft of more than $50, and his punishment fixed at five years in the penitentiary.

The alleged theft was of an automobile, which was taken from the garage of its owner in Anson, Jones county, Tex., on the night of September 1, 1922. It was" missed the following morning, and that night the owner went to Breckenridge, in Stephens county, reaching said town shortly after sunrise the next morning. To his surprise, as he drove up to park his car near the jail, he found the stolen car parked just beside where he had stopped. A number of witnesses testified for the state that they saw the appellant and a companion in Anson on the afternoon and night of the alleged theft. On the next day a witness testified that he found appellant in the alleged stolen car near the golf links a short distance out from Breckenridge, and that he arrested him. Upon searching appellant, nine dies were found in his possession upon which appeared the numbers 0 to 9, inclusive; said dies, according to the witness, being numbers for stamping iron. The dies were at the trial and were introduced in evidence by the state, and testifying in his own behalf appellant identified them as those taken from him when he was arrested; his explanation of his possession of same being that he got in the car to get out of the hot sun and observed this package of dies lying on the coil box and thought something wrong and put them in his pocket for the purpose of showing them to a Mr. Phipps. The case was submitted to the jury upon the law of circum-stanial evidence.

The first complaint is of the testimony of the finding on the person of appellant, when searched, of said dies; and the introduction in evidence of same. We are unable to perceive any valid ground for the objection. The dies were identified by appellant himself while on the witness stand, and the fact of his possession of same was a circumstance of evidential force for the consideration of the jury. It is a well-known fact that the changing of the numbers upon stolen ears by means of such dies is one of the frequently adopted methods' of evading identification. Whether appellant had them for that purpose or not, or whether he had them by finding them, as detailed by him, would be a question for the jury, and the objections would go, not to the admissibility, but to the weight, of the testimony.

We have carefully examined the charge of the learned trial judge wherein he presents the law of circumstantial evidence and are unable to agree with the contention that same is incorrect. It appears that when the exception was presented the charge was changed to conform to the objection made.

Paragraph 8 of the court’s charge is as follows:

“You are further charged that in no event could you convict the defendant unless you believe from the evidence beyond a reasonable doubt that the automobile was the property of Sid G. Castles, and was stolen from the said Sid G. Castles as alleged, and that the defendant, Jesse E. Winston, was present and participated in the original taking. That is to say, that the possession or appropriation of same by the defendant, if he was found in possession of the same.or appropriated it, would not authorize you to convict him unless he participated in the original taking, as above set forth.”

We do not think this upon the weight of the evidence. The defense made was that of an alibi, and it was the imperative duty of the trial court to instruct the jury that if they had a reasonable doubt as to the presence of the defendant at the time and place that the automobile was taken, if at all, they should find him not guilty. There is no denial of the fact that when arrested the appellant was in the alleged stolen car. He admitted that he had raised the hood and looked at the engine just before .getting in the car. The state’s testimony was to the effect that he was engaged in working the steering wheel when apprehended. There being no .denial of the fact that he was in said car, we think it proper for the court to tell the jury that such possession, if in fact true, would not authorize his conviction unless he had participated in the taking of the car.

Another objection to the charge is that it fails to present the law of alibi. In addition to what we have just quoted, the ninth paragraph of the court’s charge is as follows:

“If you have a reasonable doubt as to the presence of the defendant at the time and place when and where the witness Sid G, Castles testified that his automobile was taken, you will find the defendant not guilty.”

While not in the exact language of approved charges which might have been less subject to criticism, we are of opinion that the above substantially presents the law of alibi. We do not believe the theory of the defense would be any more strongly presented bjr telling the jury that it was the claim of the accused that he was at another and different place from that of the alleged theft, etc. We think the charge not open to this objection. Harris v. State, 31 Tex. Cr. R. 416, 20 S. W. 916; Hines v. State, 40 Tex. Cr. R. 26, 48 S. W. 171; Stevens v. State, 42 Tex. Cr. R. 175, 59 S. W. 545.

An exception generally to the court’s refusal of a motion for new trial is not necessary and brings nothing before us for Review, unless there be some matters occurring during the trial which are brought before this court by the hearing of additional testimony in support of the motion for new trial, such as misconduct of the jury, etc.

In our opinion the record reflects the fact that appellant has had a fair trial, and we are not able to agree with his contention that the evidence does not support the fiMing of the jury. His explanation of his possession of the dies was unsatisfactory. His presence in the alleged stolen car on September 2d, coupled with his presence in the town of Anson, the county seat of a neighboring county from which the car was stolen, on the night of September 1st, together with all the other circumstances in evidence, seem amply sufficient to support the conclusion of his guilt.

The judgment will be affirmed. 
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