
    NEWMAN v. STATE.
    (No. 8407.)
    (Court of Criminal Appeals of Texas.
    May 21, 1924.)
    1. Larceny @=340(9) — Proof and indictment held not variance as to ownership of stolen property.
    Proof that defendant, charged with stealing car which he rented for an hour, applied to one in charge of it for rental, and wás directed to such person’s brother, owner of the car, with whom the rental contract was actually made, held not at variance with allegation of ownership in such brother.
    2. Criminal law <§=^655(5), 714 — Argument of counsel and remark of court in ruling on objection held not prejudicial.
    Argument of state that defendant had probably withdrawn his plea for suspended sentence because he. feared to put in issue Ms reputation, and the court’s remark, in sustaining objection to such argument, that he did not consider the remark a reference, to defendant’s failure to testify, held not prejudicial.
    3. Larceny @=355 — Evidence heid to sustain conviction.
    Evidence held to sustain conviction for theft by bailee of automobile.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    F. M. Newman was convicted of tbeft, and be appeals.
    Affirmed.
    Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Potter county of theft of property of the value of more than $50, and his punishment fixed at two years in the penitentiary.

The specific charge was theft by bailee. A. W. Ratcliff! was engaged in renting cars in Amarillo, Tex., and, on the date in question appellant, who had rented a car on a former occasion, went to Ratcliff’s place to hire a car. Ratcliff’s brother was in temporary charge, while Ratcliff had gone to dinner ; but appellant was sent by the brother to a restaurant, where Ratcliff was eating, and there arrangement was made as to terms, and appellant was sent back to the place of business, where he took charge of the car. One of-the complaints made here is that the indictment should have alleged Rat-cliff’s brother as being the owner of the car and the person from whom same was hired. We do not think so, and therefore hold against appellant on the proposition of variance between the allegation and proof.

.The car was hired for an hour, and was taken about 12 o’clock noon. Appellant was arrested with the car at Sayre, Okl., the next day, and brought back to Texas, where his indictment and conviction followed. Appellant requested seven special charges, one of which was given, same telling the jury in substance that he could not be convicted upon proof merely that he did "hot return the car, but that there must be p^oof of some act or circumstances showing that he did not intend to return it, and that he intended to deprive the owner of the use and benefit thereof. We have examined the exceptions reserved to the main charge of the court, as well as each of the requested instructions refused, and perceive no error presented in any of same.

Appellant’s eighth bill of exceptions sets out a statement made in argument, the objection offered thereto and a remark of the court. This bill was. qualified; the trial judge stating that the argument and objection were substantially .as stated, but" that he did not remember having made the remark attributed to him. Refusing to accept the bill thus qualified, appellant presents a bystander’s bill, which does not differ materially from the court’s bill, except that it affirms that the judge did make said remark. The argument referred to was a statement that the plea of suspended sentence was withdrawn, probably because appellant feared to put in issue his reputation. The statement attributed to the court in sustaining the objection to this argument was that he did not consider the remark a reference to the defendant’s failure to testify. , We dispose of the whole matter by saying that we perceive nothing in either the argument or in the statement of the court which violates any statute, or could injure appellant or call for reversal. An application for suspended sentence had been read as part of the’ defense, but was withdrawn in the charge of the court. That no evidence was offered in support of such plea was necessarily before the jury. It may be that it was wrong for the state’s attorney to express his view of appellant’s reason for not offering such evidence, but testimony of good reputation is not ordinarily given by the accused himself, and it would be a strained construction to say the remark of the district attorney was a reference to appellant’s failure to testify, or that a statement of this fact was misconduct of the court.

There was no dispute of the fact that appellant hired the car -in Amarillo for an hour; that he was seen after that time had expired in a car with a woman going away from said town; nor that he was arrested the next day in Sayre, Okl., having said car in his possession. No explanation of such acts or possession was then made, nor at this trial. The jury fixed the lowest penalty. The facts so clearly showing his guilt, and the punishment given showing an absence of prejudice, we have no option but to affirm the case. Hofheintz v. State, 45 Tex. Cr. R. 117, 74 S. W. 310; De Los Santos v. State, 65 Tex. Cr. R. 518, 146 S. W. 919.

The judgment will be- affirmed. 
      @=3Í¡’or other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     