
    WALKER v. STATE.
    (No. 11760.)
    Court of Criminal Appeals of Texas.
    May 16, 1928.
    1. Criminal law <§=784(1) — Where possession of recently stolen; automobile was relied on for conviction of theft, failure to give law of circumstantial evidence held' error.
    Where possession of recently stolen automobile with other circumstances was relied on for conviction of theft, case was one of circumstantial evidence and court’s failure to submit case on law of circumstantial evidence held error.
    2. Criminal law <3=792(2) — In' prosecution for theft of.automobile, court properly submitted case on law of principals, under evidence.
    In prosecution for theft of an automobile', court committed no error in submitting case to jury upon law of principals, under evidence.
    3. Larceny <&wkey;43 — In prosecution for theft of automobile, evidence that traffic officer received telephone message and later car was found held admissible.
    In prosecution for theft of an automobile, admitting evidence that traffic officer received telephone message and that following reception of same 'officer found car in question at an automobile dealer’s place held not error.
    4. Larceny <@=5I(I) — In prosecution for theft of automobile, officer could testify he found defendant driving automobile and that defendant stated it was his and exhibited bill of sale conveying car to J.
    In prosecution for theft of an automobile, it was proper to allow officer to testify that he found defendant driving car and that, when defendant was asked whose car it was, he replied that it was his and .exhibited bill of sale conveying car to J.
    5. Larceny <@=50 — In prosecution for theft of automobile, officer could testify that defendant gave false name corresponding with name on bill of sale.
    In prosecution for theft of an automobile, it was permissible for officer who found defendant driving car in question to testify that defendant told him his name was J., where defendant at time had bill of sale to J.
    Appeal from District Court, Tom Green County; J. F. Sutton, Judge.
    Henry Walker was convicted for theft of an automobile, and he appeals.
    Reversed and remanded.
    W. A. Anderson and W. A. Johnson, both of San Angelo, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, ■ J.

Conviction for theft of an automobile; punishment, five years in the penitentiary.

The court did not instruct the jury upon the law of circumstantial evidence. The charge was excepted to for such failure. In our opinion the case is clearly one resting entirely upon evidence of that character. The automobile in question was taken from the possession of its owner in San 'Angelo • on April 15th. It was registered in the office of the tax collector of Sutton county, either that day or the next, by one Girvin who gave the name E. L. Johnson. The alleged stolen car was found in Fort Worth about April 21st, in the possession of appellant. He told parties who found him in the possession thereof that his name was S. B. Jenkins, and exhibited to them a bill of sale purporting to have been made at San Angelo on April 16th and executed by one E. L. Johnson, conveying the car to S. B. Jenkins. The state relied entirely upon the fact of possession on the part of appellant, together with other circumstances, for conviction. Authorities are so numerous upon the proposition, that, when possession of recently stolen property is relied upon for conviction, the case is one of circumstantial evidence, that it would seem unnecessary to cite same.

In view of the fact that the case must be reversed for failure of the court to submit the case upon the law of circumstantial evidence, we deem it proper to say that, in our opinion, the court committed no error in submitting the case to the jury upon the law of principals. . There was testimony on the part of the officers of Sutton county, where the alleged stolen automobile was registered and a license number obtained, that the party so registering said car was not appellant, but was one Girvin who gave them the name of Johnson. The testimony further indicating that Girvin, alias Johnson, executed the bill of sale purporting to convey the ear in question to appellant on the 16th of. April, the day after it was stolen, this might tend to support the issue of a joint theft by appellant and Girvin.

We think it not error for the court to allow in evidence the fact that Traffic Officer Hecker received a telephone message -in Fort Worth, and that, following the reception of same, Mr. Hecker found the ear in question at an automobile dealer’s place in said city. The contents of the telephone message were not stated. We also believe it proper for Mr. Hecker to be allowed to testify that he fopnd appellant driving the ear in question, and that when appellant was asked whose car it was, he replied that it was his and exhibited the bill of sale dated April 16th, signed by E. L. Johnson, conveying the car to S. B. Jenkins. We also think that it was permissible for Mr. Hecker to testify that appellant told him his name was Jenkins. Holmes v. State, 32 Tex. Cr. R. 361, 23 S. W. 687; Purdy v. State, 50 Tex. Cr. R. 320, 97 S. W. 480; Stayton v. State, 32 Tex. Cr. R. 34, 22 S. W. 38; Boyett v. State, 26 Tex. App. 705, 9 S. W. 275; Norsworthy v. State, 45 Tex. Cr. R. 340, 77 S. W. 803; Gregory v. State, 50 Tex. Cr. R. 76, 94 S. W. 1041; Hilcher v. State, 60 Tex. Cr. R. 180, 131 S. W. 592.

For the error of the court in not submitting the case to the jury upon the law of circumstantial evidence, the judgment will be reversed and the cause remanded. 
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