
    WALTERS v. STATE.
    (No. 8949.)
    (Court of Criminal Appeals of Texas.
    Oct. 7, 1925.
    Rehearing Denied Nov. 25, 1925.)
    1. Jury <&wkey;70(9) — Selection of jury for trial out of jurors summoned for week, as distinguished from jurors selected by jury commissioners, held not error.
    Selection of jury for trial out of jurors summoned for week held not error, “under Vernon’s Ann. Code Cr. Proc. 1916, art. 715, where 'it appeared that there were regular juries for the second and fifth weeks inclusive of the term of court, and the case was set for an earlier week but when called motion for continuance was made which was overruled, and the case then reset without objection to the seventh week, for which there was no regular jury; it appearing that the case could not be tried during a regular jury week except at the first setting.
    2. Indictment and information <&wkey;19 — Indictment in statutory form held sufficient.
    Indictment fpr receiving and concealing stolen property following approved form held sufficient.
    3. Criminal law <&wkey;l I74( I) — That jury in charge of officer went to fire in town where people gathered held not ground for reversal, in absence of showing of injury.
    That jury in charge of an officer went to a fire in town where people had gathered held not ground for reversal in absence of showing of injury to accused.
    On Rehearing.
    4. Criminal law <&wkey;l09l(II) — Court of Crimi, nal Appeals is not. authorized to consider bill of exception entirely in question and answer form.
    Court of Criminal Appeals is not authorized to consider bill of exception entirely in question and answer form, in view of pertinent statutes and former decision.
    
      5. Criminal law <©=>1111 (3) — Court’s qualification of bill of exception, accepted with such qualifications, thereby became part of such bill.
    Court’s qualification of bill of exception, accepted with such qualifications, thereby became part of such bill.
    6. Criminal law <&wkey;l 169(3) — Admission of testimony as to value of stolen automobile received by accused held harmless, in view of accused’s admission of value.
    In prosecution for receiving and concealing a stolen automobile, admission of testimony of witness as to value of the automobile received by accused held harmless, in view of admission of accused’s counsel in open court that the automobile was worth over $50.
    7. Criminal law <&wkey;400(7) — Admission of testimony of purchaser of stolen car that he wrote check to person going by either one or other of two names held not improper.
    In prosecution for receiving and concealing a stolen automobile which accused sold to witness, reception of testimony of such witness that he wrote the check to an individual under either one of two names designated by him, one of which names was that of accused, held not improper as against objection check, was the best evidence, where theretofore state’s attorney called upon accused to producq check, but he did not do so or endeavor to explain where it was or what he had done with it.
    8. Criminal law <&wkey;730(8) — Remarks of prosecuting attorney as ,to name in which witness purchasing article wrote to accused held not harmful.
    In a prosecution for receiving and concealing stolen automobile, which accused sold to witness, remarks of district attorney that accused told witness his name was O. and that accused wrote to him in the name of C., and that the letter was received by witness and signed by C., held not harmful, where the objections to remarks were sustained and the court instructed jury to disregard them for any purpose, and it appeared that a written statement made and given by accused to county attorney, and introduced in evidence, gave accused’s name as C. and was so signed.
    9. Criminal law <&wkey;l 144(12) — Insufficiency of statement of facts in bill of exceptions required presum'ption that court’s ruling admitting testimony was correct.
    Statement of facts in bill of exceptions, so insufficient as to preclude court from determining whether testimony of conversation with accused, came un'der rule of res gestas, required presumption that court’s ruling admitting such testimony was correct.
    10. Criminal law <&wkey;>l 12,0(4) — Bill of exception complaining of admission of exhibit held insufficient to authorize consideration of alleged error.
    In a prosecution for receiving and concealing a stolen automobile sold to witness, a bill of exception complaining of alleged introduction by state of exhibit, over the objection it was not properly identified!, did not correspond to original receipt, was hearsay, and did not con-1 nect defendant with the transaction, held insufficient to merit consideration of the alleged error, where it did not state what the witness testified to, nor set out the exhibit, but merely stated it was a blank application showing certain names for the registration of an automobile in a certain city.
    11. Receiving stolen goods <&wkey;8(2) — Application for registration of automobile, upon which registration receipt delivered by accused to purchaser of car, held admissible.
    In a prosecution for receiving and concealing an automobile which accused sold to witness, application to the automobile department for registration of automobile, upon which was issued a registration receipt which accused delivered to the witness when the latter bought the car from accused, held admissible.
    12. Criminal law <&wkey;726 — Closing argument of district attorney relating'to accused’s claimed honesty held not reversible error.
    In a prosecution for receiving and concealing a stolen automobile which accused sold to witness, closing argument of district attorney referring to accused’s honesty held not reversible error, where such remarks were made in rqply to counsel’s argument that accused was an honest man.
    13. Criminal law <&wkey;l 169(1) — Admission of testimony that purchaser of stolen car came to witness’ bank to stop payment of check given for car held not harmful.
    In prosecution for receiving and concealing stolen automobile, reception of testimony that purchaser of car came to witness’ bank to stop payment of the check given to accused held not harmful, in view of conversation between accused, purchaser, and witness; such testimony being admitted only to show that accused did not collect money for car.
    14. Criminal law <&wkey;4l3(l)— Proposed: testimony held properly excluded as having for its object purpose self-serving.
    In a prosecution for receiving and concealing a stolen automobile, proffered testimony of accused that, when effort was made to get him out of jail, he told witness to make it known to court that he did not want to be released until “this matter was cleared up,” held properly excluded as having for its object a purpose self-serving.
    15. Criminal law <&wkey;>l 120(4) — Court of Criminal Appeals cannot consider bill of exceptions, failing to set out written statement admitted in evidence and! complained of.
    Court of Criminal Appeals cannot consider bill of exceptions complaining of admission in evidence of written statement, Where bill was defective in failing to set out the written statement.
    16. Criminal law <&wkey;l I44( 12) — Form of bill of exception complaining of admission in evidence of exhibit required presumption court in admitting it acted properly.
    Where a bill of exceptions complaining of the introduction in evidence of an exhibit containing a written statement did not set out written statement complained of, it will be presumed that trial court acted properly in admitting the statement.
    17. Criminal law <&wkey;680(l), 1153(8)—Time of introducing evidence is discretionary with trial court, whose actions in that respect will not be reviewed, in absence of showing of abuse of discretion.
    Time of introducing evidence is discretionary with trial court, whose actions in that respect will not be reviewed, in absence of shewing of abuse of discretion.
    18. Indictment and information <&wkey;169 — Where indictment charged -car was stolen by some person to grand jury unknown, permitting state to show what diligence was used in ascertaining facts of taking of car held proper.
    ‘In a prosecution for receiving and concealing a stolen automobile, where indictment alleged that .the car was stolen by some person to the grand jury unknown, permitting state to introduce -evidence showing the diligence used by the grand jury in attempting to ascertain the facts relative to taking of the car from the owner held proper.
    Commissioners’ Decision.
    'Appeal from District Court, Parker County; E. O. McKinsey, Judge.
    J. M., Walters was convicted of receiving and concealing stolen property, and he appeals.
    Affirmed.
    Harvey P. Shead and Thomas C. Tripp, both of Port Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover 0. Morris, Asst. State’s Atty., both of Austin, for the State.
   BAKER, J.

The appellant was convicted in the district court of Parker county for receiving and concealing stolen property and his punishment assessed at two years in the penitentiary.

Complaint is made in bill of exception 1 to the action of the court in having the sheriff to summon a jury for the week out of which a jury was selected for this trial, because it is alleged the appellant was entitled to a trial by a jury selected by the jury commissioners. The trial court qualifies this bill, showing that there were regular juries for the second to fifth weeks, inclusive, of the term of court, and this case set for an earlier week of court, and when called appellant made a motion for continuance, which was overruled and the case reset without objection, for the seventh week for which there was no regular jury, and that there was no time during a regular jury week that this case could be tried except the first setting. Article 715, Vernon’s C. C. P., provides, when from any cause there are no regular jurors for the week, the court shall order the sheriff to summon number of qualified persons necessary from which to select a jury. It appears from the record the court followed this statute, and we are of the opinion there is no error shown in this bill. Branch, P. C. § 533, citing Wyatt v. State, 38 Tex. Cr. R. 258, 42 S. W. 598, Bruce v. State, 76 Tex. Cr. R. 72, 173 S. W. 301, and many other authorities.

In bill of exception 2 complaint is made to the action of the court in overruling appellant’s motion to quash the indictment, because it is contended same is too vague, indefinite, and uncertain. We have carefully examined said indictment and said bill of exception, and are of the opinion that -the indictment is sufficient and meets the requirements of the statutes, and follows the approved form of Wilson’s Criminal Forms (4th Ed.) No. 691, p. 350, and Branch’s P. C. § 2530, p. 1364.

Appellant complains in bill of exception 16 of the jury, while out deliberating and in charge of proper officer, going to a fire in town where people had gathered. The court heard the evidence of the jury and all evidence introduced on this issue, and we think correctly overruled the contention of appellant, as there was no showing in said bill of any injury sustained by him in the least.

The statement of facts shows to be made up largely in question and answer form, contrary to article 846, Vernon’s C. C. P., and for said reason we are unauthorized to consider same. Knott v. State, 93 Tex. Cr. R. 239, 247 S. W. 520; Jacobs v. State, 92 Tex. Cr. R. 253, 242 S. W. 232; James v. State, 97 Tex. Cr. R. 612, 262 S. W. 500; Simmons v. State, 97 Tex. Cr. R. 385, 261 S. W. 1032. In Jacobs v. State, supra, this court on rehearing by Judge Hawkins, stated, “this is not an open question,” citing many authorities in addition to many authorities cited in the original opinion by Judge Lattimore. Appellant urges several other 'bills of exceptions 'to the ruling of the court upon the trial of this case, but with the elimination of the statement of facts show no alleged errors of the trial court that we can consider.

After a careful consideration of the record, we are -of the opinion that the judgment of the trial court should be affirmed, and it is accordingly so ordered. - ■

On Rehearing.

Upon more mature reflection, the conclusion has been reached that the* statement of facts should be considered.

There are 16 bills of exceptions in the record. and in our former opinion we disposed of bills 1, 2, and 16. We will now consider the remaining bills embracing the complaint made' by the appellant to the action of the trial court in ruling upon issues arising upon evidentiary facts in this case.

Appellant in bills 3 and 10 complains of the action of the trial court in admitting the testimony of the witnesses Van Hooser and Neal relative to the value of the automobile in question, upon the grounds that the witnesses were not shown to have been properly qualified to testify to the value thereof. Bill No. 3 is entirely in question and answer form, which, under the statutes and decisions of this court, we are not authorized to consider. However, the court qualifies both of said bills by stating that the appellant’s counsel in open court admitted to the court’ and jury that the automobile in question was worth over $50. The appellant having accepted said bills with said qualifications thereon, same became a part of said bills, and regardless of said objections made to said testimony, said admission would render any objections relative to said value harmless.

In bill of exception No. 4, appellant complains of the action of the court in permitting the state to prove by the witness Van Hooser, the purchaser of the alleged car in question, that he wrote the check to either “Walters or Olark,” because the cheek was the best evidence. The court qualifies this bill by stating that the cheek was deliver'ed to the defendant and was last seen in his possession and under his control, and on the trial the appellant was called upon by the state’s attorney to produce the check, and he did not produce it or make any explanation as to where it was or what he had done with it. Under the circumstances, we are of the opinion that the state had the right to produce said evidence complained of, and there is no injury shown to the appellant thereby.

In bill No. 5 appellant complains to the action of the district attorney while the witness "Van Hooser was upon the stand and he had ■ exhibited to him a letter in an envelope and asked him if he had received that letter, and upon objection made by appellant’s counsel, the district attorney stated to the court that defendant told the prosecuting witness Van Hooser his name was Olark, and he wrote to him in the name of Olark, and the letter was written and received by Van Hooser and signed by Olark, because said remarks were improper and prejudicial. The bill discloses that the court sustained the objections and instructed the jury not to consider the remarks for any purpose, and in his qualification to this bill further states that after the defendant was arrested, he made a written statement to the county attorney which was introduced in evidence and in which he gave his name as Clark, and he signed the same by that name. Under these circumstances, there could be no possible injury done to the appellant.

Complaint is made in biH 6 to the court’s action in permitting the witness Van Hooser to testify to a conversation between him and the appellant to the effect that he was selling other cars and would pay a man for helping him sell them, and that the witness told him (the appellant) that Sam Moore was in the market, because it is contended that it was going into another and different transaction, and prejudicial to the rights of the appellant. The court qualifies this bill by stating that he thought that it was a part of the res gestae, and that the defendant’s counsel brought out from other witnesses (officers) that the appellant had sold a number of stolen cars and had assisted the officers in recovering the cars for the owners. There is not a sufficient statement of facts in the bill for this court to determine whether said conversation comes under the rule of res gestae or hot, and for that reason we will-have to presume that the court’s ruling was correct. In any event, the bill as presented with the qualification thereto shows no error in the admission of said testimony.

In bill 7 complaint is made to the alleged introduction by the state of Exhibit 4, because it is contended same was not properly identified; that it did not correspond to the original receipt, was hearsay, and did not connect the defendant with said transaction. Said bill does not state what the witness testified to and does not set out said exhibit, but states the said exhibit was a blank application showing the name of Sheppard & Bosen of Mertens, Tex., for the registration of an automobile in Hill county, Tex. This bill is not sufficient in itself to apprise this court of the alleged error complained of. The court’s qualification to same states that the witness was deputy tax collector of Hill county and had charge of the automobile registration department, that said application was in his custody and was part of the record of the office, and identified it as the application upon which there was issued a registration receipt except for some changes that had been made in it after it was issued/ and the evidence showed the defendant delivered it to Van Hooser when the latter bought the car in question from the defendant. The bill as presented with the qualification shows no error.

Complaint is made in bill 8 to the action of the coui i in permitting the witness Martin to testify that he had made inquiry as to whether or not there was a man by the name of J. A. Hill at Mertens, Tex., and could find no one who knew him over there, and could not find a man by that name at Mertens on the tax roll, because it is contended that same was hearsay, immaterial and prejudicial. The court qualifies this bill by stating that J. A. Hill was either a fictitious person or that he did not live in Hill county. We fail to see any error in this particular, and especially in view of the fact that the witness Sheppard for the state, of the firm of Sheppard & Bosen, testified to practically the same facts to the effect that he did not sell a man by the name of J. A. Hill a Ford ear, and did not know a man by that name supposed to live at Mertens.

Complaint was made in bill 9 to thq closing argument of the district attorney to the effect that if the defendant was as honest as they claimed, he should have quit handling cars when he sold the one in question, but that he continued to receive and conceal stolen cars, having made his last sale on January 22, 1924; because such statement was not borne out by the record and was prejudicial. The court qualified this bill by stating that the defendant’s counsel argued to the jury that the defendant was an honest man, and that the remarks were in reply thereto, and that the evidence brought out by the defendant showed that he had connections with or knowledge of other stolen ears which were recovered on January 22, 1924, on information given by him. Under the explanation of the court to this bill, we are of the opinion that there is no error shown.

In bill of exception 11 appellant complains of the action of the court in permitting witness Head to testify that the witness Van Hooser came to his bank and had him to stop the payment of the check, that is, the check given by Van Hooser to the defendant for the car in question, because he contends same involved hearsay acts and declarations. The qualification made by the court to this bill states that the defendant later saw Van Hooser and asked him about stopping payment on the check, and Van Hooser advised him he had done so, and they both went to the bank and talked to the said witness about it, and that he (the court) thought it proper to show payment was stopped on the check, and the defendant did not collect the money. Under this qualification there could possibly be no harm done to the appellant in admitting this testimony under these circumstances.

Complaint is made in bill 13 of the refusal of the court to permit the appellant to show by the witness Reagan that when there was an effort made to get him (the defendant) out of jail, that he (the defendant) told said witness to make it known to the court that he did not want to be released until this matter was cleared up. We think the court properly sustained the state’s objection to the proposed testimony, as same could be used only for self-serving purposes, and was therefore inadmissible.

Complaint is made by bill 14 of the action of the court in permitting the county attorney, after the state closed in chief its ease, to testify to what is state’s exhibit 5, and what purports to be a written statement made by the defendant to said county attorney, which the bill states was offered in evidence; the objection being that same was not properly proven up as a voluntary statement, by the defendant, came too late, and was introduced not in rebuttal of any testimony of the defendant. This bill is defective in that it does not set out the written statement complained of, and for that reason we are not authorized to consider it. Stroube v. State, 40 Tex. Cr. R. 583, 51 S.-W. 357. However, we will say in passing that in the form presented we would have to presume that the court acted correctly; and as to the time of introducing evidence it is left to the discretion of the court, and his actions thereon will not be reviewed by this court in the absence of a showing of .an abuse of such discretion. There is nothing in this bill, as presented, showing any abuse of discretion of the trial court.

Bill 15 complains of the action of the court in permitting the county attorney to testify what effort had been made by the grand jury to ascertain the facts relative to the taking of the car in question in Dallas county from the owner. We fail to see any error in the admission of this testimony, as the indictment shows the car was stolen by some person to the grand jury unknown, and it was not improper for the state to show what diligence was used in support of said allegation in said indictment.

After careful examination of the entire record, we have reached the contusion that there is no error shown in the trial of this case, and appellant’s motion for a rehearing should be overruled, and it is accordingly so ordered.

PER CURIAM.

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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