
    (86 Tex. Cr. R. 418)
    ROGERS v. STATE.
    (No. 5606.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1919.
    Rehearing Denied Jan. 14, 1920.)
    1. Criminal law <&wkey;360(4) — Identification OF ACCUSED ADMISSIBLE AS RES GESTHS.
    In a prosecution for theft of a purse from the person of the complaining witness at a stock show, testimony of the complaining witness that her attention was called to the fact that some one was taking her purse, and that she and her informant ldoked for the party, but, failing to find him, waited for him at the gate, where defendant was identified, was admissible as part of the res gestae.
    2. Criminal law <&wkey;418(2) — Happenings in PRESENCE OF ACCUSED ADMISSIBLE.
    In a prosecution for theft from the person of the complaining witness at a stock show, the complaining witness, after stating that her attention was called to the fact that some one was taking her purse, and that .she and her informant, looked for the party, but, failing to find him, waited for him at the gate, was properly permitted to testify that defendant was then identified by her informant; the identification being a matter which occurred in the presence of the accused.
    3. Criminal law <&wkey;1120(6) — Exclusion of SELF-SERVING ACTS NOT RE VIEWABLE WHERE RECORD DOES NOT SHOW EVIDENCE ADMISSIBLE.
    In a prosecution for theft of a purse, complaint cannot be made of the refusal to hear evidence that accused had issued a subpoena for a person described as C., on the ground that the latter was the offender and had admitted the fact to accused’s wife, and that he desired to prove that he had.a subpoena issued in order to corroborate his wife’s testimony, which was not objected to by the state, where, as presented, the record leaves the inference that the proof desired would have disclosed a self-serving act on the part of the appellant; there being evidence that O. was an accomplice or , coprincipal, and there being no effort to “show in the-bill that the subpmna was directed to the place of residence of C., nor. the date of its execution.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    O. H. Rogers was convicted of theft from the person, and he appeals.
    Affirmed.
    Mays & Mays, of Ft. Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., of Ft. Worth, W. E. Myres, Asst. Cr. Dist. Atty., of Cleburne, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant was convicted of theft from the person. The testimony of Mrs. Harrell, the injured party, was to the effect that while in the carnival grounds during the Stock 'Show, Ft. Worth, at nighttime, her purse containing a sum of money was in her coat pocket; that a man called her attention to the fact that another man had taken her purse; that she and the man who gave the information, being unable to find the one who took the purse in the crowd, waited at the gate, and as he came out he was identified. It was shown by her testimony and otherwise that at the time he came out appellant was in company with another man, that they were arrested, and that one of them dropped the purse and money, which were identified by the woman. The man who saw the purse taken from Mrs. Harrell’s pocket testified, and identified the appellant as the taker, stating that he saw the appellant take the pocketbook from the person of Mrs. Harrell.

There are two bills of exceptions; one complaining of the admission of Mrs. Harrell’s testimony, stating that her attention was called to the fact that some one was taking her purse, that she and her informant looked for the party, but, failing to find him, waited for him at the gate, when he was identified by her informant. This is complained of as hearsay. Part of it was res gestae, and part of it was in the presence of appellant at the time he was identified and accused of the crime.

The other bill complains of the refusal of th.e court to hear evidence that the appellant had issued a subpoena for a person described as Clayton. His position, as we gather from the bill, was that Clayton was the offender, and had admitted this fact to the appellant’s wife, and that he desired to prove that he had a subpoena issued for him, in order to corroborate his wife’s testimony. The wife’s testimony was not objected to by the state, though it appears to have been hearsay. Greenwood v. State, 208 S. W. 662, and authorities cited therein. There is no suggestion in the bill that any use of the absence of Clayton at the trial was made by the state, such as would have made it competent for the appellant to prove that he had caused the issuance of a subpoena forhim. There is evidence that Clayton was an accomplice or Coprincipal with the appellant in the commission of the offense, and no effort in the bill is made to show that the subpoena was directed to the place of residence of Clayton, nor the date of its issuance. As presented, the record leaves the inference that the proof desired would have disclosed but a self-serving act on the part of the appellant.

The evidence is conclusive of the guilt of appellant, and we discern from the record no error which would justify a disturbance of the verdict.

The judgment is affirmed. 
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     