
    ROGERS v. STATE.
    (No. 9455.)
    (Court of Criminal Appeals of Texas.
    Nov. 11, 1925.
    Rehearing Denied Jan. 6, 1926.)
    1. Criminal law «©^o^SÍS) — Testimony as to things missing coincident with' time of commission of burglary held admissible as res gestee.
    In prosecution for burglary and receiving stolen goods, testimony of president of corporation owning store burglarized, stating all things missing from store coincident with time of burglary, was admissible as part of res gestae, regardless of whether each article mentioned was named in 'indictment.
    2. Receiving stolen goods &wkey;>7(6) — Conviction held sustainable only for theft of articles named in indictment.
    In prosecution under indictment for burglary and receiving stolen goods, conviction can be sustained only for theft of articles named in indictment, regardless of testimony of president of corporation owning store as to articles missing from store.
    3. Criminal law <&wkey;>339 — Permitting district attorney to make inquiry as to identity of wife of accused held not error.
    In prosecution for receiving stolen goods, in which accused and his wife were jointly in-dieted, permitting state’s attorney to make inquiry as to identity of his wife was not error, in view of fact that state might wish to use her as witness.
    4. Witnesses <&wkey;>277(2) — Question on cross-examination of accused as to whether he had formerly been friendly with state’s witness held proper.
    In prosecution for receiving stolen goods, permitting state to cross-examine accused as to whether state’s witnesses had formerly been his friend was pertinent and proper.
    5. Criminal law &wkey;>l09l (I I) — Bill of exceptions, confused and involved in form, held to show no reversible error.
    In prosecution for receiving stolen goods, where bill of exceptions set out many questions and statements by district attorney, and many separate and distinct objections to each of them, and ended by stating that to all of which acts and rulings of court accused excepted and tendered bill of exceptions, on failure to show that each matter objected to was erroneous, such bill of exceptions showed no reversible error.
    6. Criminal law <&wkey;il 170i/2(5) — Improper cross-examination of accused held not to constitute reversible error.
    In prosecution for receiving stolen goods, asking accused on cross-examination whether, if he had taken goods in question, he would tell jury about it, although not proper method of cross-examination, was not reversible error.
    7. Criminal law <&wkey;683( I) — Permitting testimony that accomplice had not seen person of whom accused claimed to have received goods held proper.
    In prosecution for receiving stolen goods, where accused testified that he received goods in question from peddler, permitting accomplice to testify in rebuttal that he had not seen peddler at place where accused claimed he received goods, and that he did not know of such person, was proper.
    8. Criminal law <&wkey;594(l) — Refusal of continuance for absence of accused’s wife indicted with him held not error.
    In prosecution for receiving stolen goods, where accused’s wife was jointly indicted with him, she was not competent witness, under Pen. Code 1925, art. 82, and refusing continuance because of her absence was not error.
    9. Criminal law &wkey;>l 167(2) — Indictment and information &wkey;> 125 (40) — Indictment containing counts charging burglary, of being accomplices in burglary, and with receipt of stolen goods, held not duplicitous; refusal to quash not error when only one count submitted.
    Indictment in first count charging burglary, in second count charging other persons with being accomplices in burglary by advising and' encouraging it, and in third count charging that such latter persons received stolen goods, was not duplicitous, and refusal to. quash it was not error, in view of fact that court submitted only count for receiving stolen property.
    On Motion for Rehearing.
    10. Criminal law c&wkey;829(4) — Refusal to give special charges held not error, in view of main charge.
    In prosecution for receiving stolen goods, where court’s main charge correctly presented affirmative defenses, failure to give special charges that because accused was blind he did not become aware of any property received by him as being stolen, and that, if accused was blind and did not see certain names on hotel register, jury should not consider names and erasures on book introduced as register for any purpose, was not error, in view of fact that such charges bordered closely on being charges on weight of evidence.
    Commissioners’ Decision.
    Appeal from District Court, Hemphill County; W. R. Ewing, Judge.
    Ered Rogers was convicted of receiving stolen property, and he appeals.
    Affirmed.
    J. W. Culwell, of Amarillo, and Hoover, Hoover & Willis, of Canadian, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.'
   BERRY, J.

The offense is receiving stolen property; the punishment is two years in the penitentiary.

The facts show that a store was robbed in Canadian and the goods taken to Amarillo and that appellant was found in possession of more than $100 worth of said goods. We think the testimony is amply sufficient to support the verdict, and are satisfied that the two accomplice witnesses, who testified against appellant in the case, were amply corroborated by other testimony, tending to connect him with the offense charged.

We have carefully examined the various special charges offered by the appellant and refused by the court, and think that the record fails to show any error with reference to the court’s ruling thereon. We also think it was proper for the court to permit the president of the corporation owning the store in which the burglary was committed to state to the jury all of the things that were missing from the store coincident with the time the burglary was committed. We think that the authorities in this state are clear to the effect that the state has the right to make proof as to the entire amount of the theft, regardless of whether each article mentioned is named in the indictment or not. This testimony seems to us to be clearly admissible as a part of the res gestee. A conviction, however, can be sustained only for the theft of those articles named in the indictment.

By bill of exceptions No. 3, appellant complains at the action of the district attorney in making inquiry as to the identity of the wife of the appellant. We think it was permissible for the state to make this inquiry. The indictment contained in this record shows that Ered Rogers and Mrs. Ered Rogers were jointly indicted for this offense. This being true, the state could not use the said-Mrs. Ered Rogers as a witness against the appellant, if she was, in -fact, his wife. On the contrary, if the testimony should develop that she was not his wife, if the state desired to do so, it would then have the right to .use her as a witness. We think no error is shown with reference to the matters complained of in this bill of exceptions.

Complaint is also made at the court’s action in permitting the district attorney to ask the defendant if he thought that the witness Crowder was such a man as would come upon the witness stand and swear a lie against him, and also at the court’s action in permitting the district attorney to ask the appellant while on cross-examination as to whether the witness Crowder had been his friend up until last August. It seems from the bill of exceptions that the witness did not answer the first question as to what he thought about the witness Crowder lying against him when the question was asked and that the district attorney did not insist on an answer to the question until after a long and heated colloquy between him and appellant’s counsel. The bill sets out many questions and statements made by the district attorney, and many separate and distinct objections and exceptions made to each of them, and the bill ends by stating that to all of which acts and rulings of the court the defendant then and there excepted and tendered this his bill of exceptions No. 4. We doubt if we ought to consider the bill because of its rather confused and involved contents. Griggs v. State, 99 Tex. Cr. R. 215, 268 S. W. 940. We are clear, however, that it is not true that each of the matters complained of and excepted to in said bill shows error. For instance, it - is perfectly apparent from the bill itself that the question to the appellant as to whether the witness Crowder had been his friend was a pertinent and proper cross-examination of appellant as a witness. In the form in which the bill is presented before we could hold that it shows error it would be necessary for us to find that each of the matters objected to was erroneous. This we are unable to do, and therefore hold that the bill shows no reversible error.

Neither do we think that Bill No. 5 shows any reversible error. This bill complains because the district attorney asked the defendant whether or not, if he had taken the goods in question, he would tell the jury about it. This is not a proper method of cross-examination, but we think it is not of such, serious moment as to justify or authorize a reversal of the case.

Complaint is also made at the court’s action in permitting the state to introduce one of the accomplices in rebuttal. This bill shows that appellant testified that he received the goods in question from a peddler by the name of Mooney, who was staying at the hotel, and the state, in rebuttal, placed on the stand Frank Morris, one of said accomplices, and asked him whether or not he had scon a peddler at the place where appellant claimed he had received the goods from Mooney, and whether or not he knew of such a man being around there, and the witness answered each of these questions in the negative. We think this testimony was clearly in rebuttal of the appellant’s testimony and was properly admissible as such.

Appellant also complains at the court’s action in refusing to grant his first application for a continuance. This application shows that it was made on account of the absence of Mrs. Fred Rogers. The court qualifies this bill by stating that Mrs. Rogers was jointly indicted with the appellant for the same offense and was not a competent witness for him on the trial of this case. This ruling of the court was correct. Article 82, P. C. of Texas; also see section 732, Branch’s P. C., for full collation of authorities. See, also, Ortiz v. State, 68 Tex. Cr. R. 524, 151 S. W. 1056.

The court ruled correctly in refusing to quash the indictment herein. The same was not duplicitous and did not contain counts repugnant to each other. The first count in the indictment charged Chambers and Morris with the offense of burglary by breaking and entering a house owned by a corporation which the indictment named. The second count in the indictment charged this appellant and Mrs. Fred Rogers with unlawfully and willfully advising, commanding, and encouraging the said Chambers and Morris to commit said offense; in other words, it charged them, with being accomplices to the burglary. The third count charged this appellant and Mrs. Fred Rogers with unlawfully and fraudulently receiving certain property alleged to have been stolen by Chambers and Morris from the firm on whose store the burglary was committed. These counts do not make the indictment duplicitous, and it was a proper pleading for the state to charge each of them in the same indictment. The court submitted but one of said counts, to wit, the one for receiving the stolen property, to the jury. Under this condition of the record, it is clear that no error is shown by the court’s action in refusing to quash the indictment. Trimble v. State, 18 Tex. App. 632; Houston v. State (Tex. Cr. App.) 47 S. W. 468. East paragraph, p. 261, Branch’s P. C., for full collation of authorities.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals Fas been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BERRY, J.

Appellant complains in his motion at the holding of this court to the effect that no error was committed in refusing his special charges Nos. 10 and 11.

Special charge No. 10 was to the effect that the defendant was blind and by reason of such fact did not become aware that any property he received was stolen property; and charge No. 11 is to the effect that if the defendant is blind, and for such reason did not see the names on the hotel register, then the jury should not consider the names and erasures on the book introduced as the register of the Ideal Rooming House for any purpose in this case.

While we did not write at length on these charges in the original opinion, yet they had our very careful attention. We think the court’s main charge correctly presented the affirmative defenses offered by the appellant, and we are of the opinion that no error is shown in the court’s failure to give special charges Nos. 10 and 11. If these special charges are not on the weight of the evidence, they border so closely thereon as to make it impossible for us to say that in any event they should have been given as framed.

The other matters presented in the motion for rehearing, were fully discussed in the original opinion, and, notwithstanding the very able and very courteous motion for rehearing, we are constrained to believe that the matters discussed were correctly disposed of therein.

It is accordingly our opinion that the motion for rehearing should be in all things overruled.

PER OURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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