
    LANDRY v. STATE.
    (No. 7860.)
    (Court of Criminal Appeals of Texas.
    Dec. 12, 1923.
    Rehearing Denied Jan. 16, 1924.)
    1. Criminal law &wkey;665(I) — Permitting prosecuting witness to again testify, after hearing other witnesses, not ground for reversal.
    Action of court in permitting prosecuting witness to remain in the courtroom after he had given his testimony in chief, while other witnesses were testifying and to subsequently testify, held not ground for reversal, where the subsequent testimony did not pertain to matters as to which such other witnesses testified.
    2. Criminal law &wkey;617 — Defendant may not withdraw announcement of ready after close of evidence.
    A defendant who did not seek to withdraw announcement of ready, or to postpone the case on admission of unsupported testimony on behalf of the state, was not entitled to the withdrawal of the announcement after both the state and the defendant had closed their entire evidence.
    3. Criminal law <&wkey;>599 — Testimony as to possession of other property held not to entitle defendant to withdraw announcement of ready.
    In a prosecution for theft of chickens found in defendant’s truck, shortly after the commission of the crime, the admission in evidence that a pair of gloves belonging to the owner of the chickens, and which had been left near the chickens on the night of the' theft, was also found in defendant’s truck, did not entitle defendant to withdraw announcement of ready, or to postpone or continue the case on the ground that he was surprised by such evidence.
    4. Larceny <&wkey;68(I) — Evidence in theft prosecution held sufficient for submission of case to jury.
    In prosecution for theft of chickens, evidence that the chickens, and a certain pair of gloves left by owner near chickens on the night of the theft, were found in defendant’s truck shortly after the theft, held to warrant refusal of request for a peremptory instruction of acquittal.
    On Motion for Kehearing.
    5. Criminal law v&wkey;>365(l) — That gloves of owner of stolen chickens were found in defendant’s truck admissible as res gestee.
    In a prosecution for theft of chickens found in defendant’s truck during the night of the theft, evidence that gloves belonging to owner of chickens, and left by owner near the chickens on the night of the theft, were also found in the truck, held admissible as a part of the res geste.
    Appeal from Liberty County Court; C. R. Wilson, Judge.
    6.A. Landry was convicted of theft of property under the value of $50, and he appeals.
    Affirmed.
    Howth & O’Fiel, David E. O’Fiel and Lamar Hart, all of Beaumont, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State. .
   LATTIMORE, J.

Appellant was cpnvicted in the county court of Liberty county of theft of property under the valúe of $50, and his punishment fixed at a fine of $200 and 30 days in jail.

The record is before us without any statement of facts.- There are four bills of exception in the record. The first complains that the court permitted a deputy sheriff to remain in the courtroom, and also permitted the prosecuting witness after he had given his testimony in chief to remain in the courtroom while other witnesses were testifying, and then over objection said witness was permitted again to take the witness stand. This bill is qualified by a statement appended thereto by the learned trial judge to the effect that the matters asked the prosecuting witness when called to the stand the second time were entirely new matters and did not pertain to any testimony given theretofore. The pertinence of the matters complained of by bill of exceptions No. 2 does not appear and cannot be appraised by us in the absence of a statement of facts. We cannot know that the matters pertaining to a pair of gloves were not relevant to the issues made by the testimony of the witnesses, in the absence of such statement of facts.

The same is true of the matters in the third bill of exceptions. This bill complains of the refusal of the trial court to permit appellant to withdraw his announcement of ready. From the bill of exceptions we learn that the state introduced certain testimony relative to a pair of gloves found in appellant’s truck. The bill presents no error. Same is accepted with a qualification appended thereto by the trial judge from which we learn that no effort was made to withdraw the announcement of ready until the state and the defendant had both closed their entire evidence. If there had been any merit in the proposed withdrawal Qf aiy nouncement, it could not avail when the accused continued the introduction of evidence pro and con until the entire case was finished. One who seeks to claim surprise by reason of some unexpected happening during the trial of the case which he could not have foreseen by the use of reasonable diligence, and from which it appears he is likely to suffer serious injury to his rights, must avail himself promptly of any right to then seek a postponement of the ease or a withdrawal of his announcement. In the ease before us not only do we think appellant waited too long to make an effort to withdraw his announcement of ready for trial, but also that the matter upon which he sought to base such withdrawal would not have supported the proposition in the first place. As part of the development of its case against appellant the state proved that a pair of gloves found in appellant’s truck was a pair of gloves belonging to the owner of the alleged stolen chickens and which had been left by him where the chickens were on the night of said theft. Appellant’s contention was that he had bought the gloves, and, if we understand the matter correctly,- he wished a postponement of the case until he could ascertain the name of the party from whom he bought them and produce him as a witness. The state does not plead its evidence in the indictment. If the rule should be laid down that one charged with crime might wait to prepare to meet the state’s case until he heard the witnesses testify and then claim that he had not expected to be called upon to meet such testimony, and that he should be given the right to postpone or continue the case until some future day, the state might have great difficulty in bringing those charged with crime to trial.

The remaining bill of exceptions relates to testimony concerning the gloves above mentioned. In the absence of the statement of facts we cannot appraise the weight of appellant’s contention. For aught we know the other testimony in the case fully elucidated and showed the pertinence of the testimony relative to the pair of gloves.

Appellant presented four special charges. The one requesting a peremptory instruction of acquittal was properly refused. Two of the others were given. The fourth sought an instruction that the jury disregard certain argument. This special charge is not approved by the trial court, nor is it made the subject of a bill of exceptions.

We have carefully considered each contention of appellant,' and, being unable to agree with any of same, the judgment will be affirmed.

On Motion for Rehearing.

The clerk of the court below failed to incorporate in the record filed in this court any statement of facts, but same has now been filed here and shows on its face to have been approved and filed-in time in the court below, and it has been considered. From same it appears that in appellant’s car, when he was arrested on the night of the alleged theft of the chickens, was found a pair of gloves. In developing its case in chief the state made no mention of the gloves, but proved only the loss of said chickens, discovery of their loss, the pursuit of a car by the owner of the chickens in company with an officer, the arrest of appellant in a car that same night, and the finding in said car of the stolen chickens. Appellant took the-stand and swore that the chickens were bought by him at or near Houston from a man whom he did not know. In its rebuttal the state showed by witnesses - that they found in appellant’s car when he was arrested a pair of gloves which were identified by Dr. Tadlock, the owner of the chickens, and by Officer Patton as the gloves of Dr. Tád-loek, which he said were on a work bench in his garage near the chicken house when he last saw them before his chickens were taken. It thus appears that proof of the loss and finding of the gloves was properly a part of the development of the res gestae of the instant case. The state did not seek to prosecute or punish for the theft of the gloves, but this in no wise affected its right to prove same as part of the transaction. Manifestly no error was committed in allowing proof of the loss of the gloves at the time the chickens were taken, and of the further fact that same were found in appellant’s possession coincident with finding him in possession of said chickens.

We are not led to change our views on appellant’s claim of surprise at the testimony relative to the gloves. Evans v. State, 13 Tex. -App. 225, lays down the rule that one cannot evade the consequences of his own neglect by the claim of surprise. The gloves were found in possession of appellant when arrested for this theft. They were then identified as the property of Dr. Tadlock. Reasonable diligence would expect evidence relating to the gloves as part of this case. The fact that appellant did not notify his attorney of the facts pertaining to the gloves, or did not expect any such evidence against him because the gloves were not named in the indictment, would not seem any sufficient reason or excuse for failure to prepare to meet this part of the state’s case.

Nor can appellant claim that the evidence presented in the shape of an affidavit attached to the motion for new trial was in fact newly discovered, as it is plain that same was known to him at and prior to the time of such trial, or could have been known by the exercise of reasonable diligence.

Appellant’s motion for rehearing will be overruled. 
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