
    REECE v. STATE.
    (No. 3274.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.)
    1. Cbiminal Law (§ 1122) — Appeal—Bill of Exceptions.
    Where the record did not show that defendant’s special charge was requested / before the court gave his charge to the jury, and no hill of exceptions to its refusal was taken, the question could not be considered.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2940-2945; Dec. Dig. § 1122.]
    2. Cbiminal Law (§ 829) — Requested In-steuction — Given Insteuction. .
    Where a requested special charge was fully covered by the main charge, it should not have been given.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.].
    3. Cbiminal Law (§ 1090) — Appeal—Bill of Exceptions — Necessity.
    Objections on motion for new trial as to the admission of evidence cannot be considered, where not verified by bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2653, 2789, 2803-2822, 2825-2827, 2927, 2928, 2948, 3204; Dec. Dig. § 1090.]
    4. Labceny (§ 12) —Elements—“Taking.”
    In a prosecution for theft, proof that defendant, or some, one, had taken actual manual possession of the cotton and moved it some distance to the scales, that defendant informed the manager of the yard holding the cotton for the owner that he had cotton to be weighed and assisted him in weighing and sampling it, and received tickets issued by such owner, which he sold for cash, showed a “taking,” within Pen. Code 1911, art. 1331, declaring that property need not be removed from the place of taking, and that it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 22-29; Dee. Dig. § 12.
    
    For other definitions, see Words and Phrases, First and Second Series, Taking.]
    Appeal from District Court, Brown County; John W. Goodwin, Judge.
    Jim Reece was convicted of theft, and he appeals.
    Affirmed.
    Arch Grinnan, of Brownwood, for appellant. C. E. Lane, Asst Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Die. & Am. Din. Kev-No. Series & Reo’r Indexes
    
   PRENDERGAST, P. J.

Appellant was convicted of the theft of two bales of cotton. The court gave a full, apt, and complete charge, submitting every issue raised. No objection whatever was made to the charge.

Appellant requested one special charge which was refused. The record does not show that this was requested before the court gave his charge to the jury, nor was any bill of exceptions taken at any time to the refusal of this charge; hence the question is not raised in such a way as authorizes this court to pass upon it. Even if we could, we think the special charge was fully covered by the main charge, and it should not have been given.

Appellant has some complaints in his motion for new trial of the introduction of testimony. None of these questions are verified by any bill; hence they cannot be considered.

The only other question he raises is: He claims the evidence does not show that the cotton was taken from the possession of Grant Thomas, to whom the indictment charges it belonged. The uncontradicted evidence on that point was substantially this: Thomas was in charge of a cotton yard in Brownwood. He had the care, custody, and control of the yard and all cotton that was received therein. About a week before appellant is charged to have committed this offense Thomas had received, weighed, and placed in position in the yard said two bales of cotton. Neither bale had been sampled. Between 7 and 8 o’clock on the night of October 4, 1913, after Thomas had left his cotton yard, appellant went to the residence where Thomas stayed and told him he had two bales of cotton he wanted weighed. Thomas told him it was dark then and to wait until next morning, but offered to go down with him and help him throw it off the wagon. He replied that it was already unloaded and his cousin had gone to the wagon yard with the team. Early the next morning Thomas met appellant and they together went down to the cotton yard for Thomas to receive from appellant, weigh, and sample the two bales. Upon reaching the yard, he found the two bales of cotton at his scales, and, with the assistance of appellant, then weighed them. He sampled one bale and appellant the other. The night before, appellant told him that the cotton was his cousin’s cotton, and when he weighed it, and when he went to issue the tickets, he asked to whom he should issue them, and appellant told him to issue them to him, which he did. Appellant then took the tickets and the samples up in the town and sold the two bales to a merchant for about $150 cash, and delivered the tickets to him at the time as representing the cotton and the delivery thereof to the merchant. A day or two later the owner of one of the bales who had first delivered it to Thomas in the yard and to whom he had issued a ticket therefor, having sold the cotton, applied to Thomas, and at first himself tried to locate it, which he could not do. Thomas then went to the cotton yard and found that the two bales which appellant had turned over to him were the two bales that he had received for the owners some days previous thereto. He thqroughly identified the two bales as the cotton previously delivered to him and placed by him at the time as stated. Thomas said no wagon had gone through the cotton yard the day before up to the time he left there. The next morning when he went there with appellant he found that since he had left there the evening before wagon tracks bad been made right at bis scales through the mud; it being quite muddy. Thomas could not say positively whether the cotton had been actually taken out of the yard from the time it was first received by him from the real owners to the time he weighed it for appellant or not.

Our statute (article 1331, P. O.) is:

“To constitute ‘taking,’ it is not necessary that the property be removed any distance from the place of taking; it is sufficient that it has been in the possession of the thief, though it may not be moved out of the presence of the person deprived of it; nor‘is it necessary that any definite length of time shall elapse between the taking and the discovery thereof; if but a moment elapse, the offense is complete.”

This evidence clearly shows that at least some one had taken actual manual possession of this cotton and moved it from where Thomas had first placed it, some distance, to the scales when appellant had it weighed, and that appellant, at the time it was weighed, by what was done, as shown above, was in possession of it, and thereby he took it out of the possession of Thomas, and then, after having it weighed and sampled, in receiving the tickets therefor, himself delivered the possession thereof, for himself, back to Thomas. We think the facts clearly show that it was a taking of this cotton out of Thomas’ possession under his first holding thereof for the true owners.

We have not recited, because unnecessary, the other evidence tending to show, and clearly sufficiently so, that appellant was the person who took said property out of Thomas’ possession. The evidence is even sufficient to show that appellant actually moved the cotton entirely from the cotton yard, and then returned it the night before he had it weighed the next morning. The court gave a correct charge on circumstantial evidence.

The judgment is therefore affirmed.  