
    NARANGO v. STATE.
    (No. 5829.)
    (Court of Criminal Appeals of Texas.
    May 19, 1920.
    On Motion for Rehearing, June 16, 1920.)
    1. Criminal law <@=> 1102 — Statement of facts copied into transcript in a felony case insufficient to constitute duplicate.
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 844c, requiring the filing of a duplicate statement of facts in the trial court and sending original to the appellate court, the mere copying of a statement of facts in the transcript in a felony case is insufficient, and a statement so copied in the transcript will be stricken from the record.
    2. Witnesses <@=>255(3) — Permitting witness to • refresh recollection from paper not offered in evidence not error.
    In prosecution for theft of property of the value of more than $50, action of court in allowing prosecuting witness to look at, and refresh his recollection from, a list of property which he had made on a former occasion, where the list was not offered in evidence, nor its contents read, held not error.
    3. Criminal law <@=>452(I)— Prosecuting witness’ testimony as to value of property under his control held not error, in prosecution for theft.
    In prosecution for theft of property of the value of more than $59, involving issue as to value of property taken, admission of testimony by prosecuting witness as to the value of a certain razor enumerated in the indictment as a part of the alleged stolen property was not error, where such razor was under the - care, control, and management of prosecuting witness, though he testified that the razor belonged co another party.
    4. Criminal law <@=o 1169(9) — Admission of testimony held harmless, in view of other testimony given.
    In prosecution for theft of property of the value of more than $59, involving an issue as to the value of the property taken, the admission of testimony as to the value of the property when it was new held harmless, where witness also testified as to its value at the time it was taken, and where under such testimony the aggregate value of all the property taken, at the time it was taken, was more than $59.
    On Motion for Rehearing.
    5. Larceny <@=>32(5)— Ownership properly laid in person having custody of property.
    In prosecution for theft of property taken from certain ranch, the allegation of ownership was properly laid in the manager of the ranch, in whose care, control, and management the property had been left by real owner.
    6. Larceny <§=>40 (2) — Proof of real owner’s want of consent not essential, where property is in control of other person.
    In prosecution for theft of property from ranch, where allegation of ownership was laid in person in whose care, control, and management the property had been left by the real owner, it was unnecessary, in order to sustain case, to show want of consent and knowledge of the real owner.
    7. Criminal law <@=>829(1) — Refusal of instruction covered not error.
    Refusal of requested instruction, substantially covered by the charge given, held proper.
    Appeal from District Court, Schleicher County;. C. E. Dubois, Judge.
    Jose Antonio Narango was convicted of theft of property of the value of more than $59, and he appeals.
    Affirmed.
    M. E. Sedberry, of Eldorado, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted of the theft of property of the value of more than $59, and his punishment fixed at two years’ confinement in the penitentiary.

We are met on the'threshold of the consideration of this case by a motion, made by our Assistant Attorney General, to strike from the record what purports to be a statement of facts, which is copied in'the transcript. Such practice ; > a felony case seems not to be in accordance with our statutes. See Vernon’s Ann. Code Cr. Proc. 1916, art. 844c, which requires the filing of a duplicate statement of facts with the clerk of the trial court, and that the original Be -sent here for our inspection, and the duplicate be kept on file by said clerk. It therefore appears that we must sustain said motion. Hardgraves v. State, 61 Tex. Cr. R. 422, 135 S. W. 144; Slatter v. State, 01 Tex. Cr. R. 243, 130 S. W. 770.

Appellant has a bill of exceptions to the action of the trial court in allowing the prosecuting witness to look at, and refresh bis recollection from, a list of property which he had made on a former occasion. No error appears in such action. Gould v. State, 66 Tex. Cr. R. 122, 146 S. W. 172; Luttrell v. State, 40 Tex. Or. R. 651, 51 S. W. 930; White v. State, 18 Tex. App. 57. The list was not offered in evidence, nor its contents read.

Another bill of exceptions was taken to the action of the lower court.in allowing the prosecuting witness to testify to the value of a certain razor found in the possession of appellant, and enumerated in the indictment as a part of the alleged stolen property; the ground of objection being that this witness had already testified that said razor belonged to another party, who worked on the ranch. The bill does not negative the idea that such razor was a part of the stolen property, nor that it m'ight have been in the care, control, and management of-said witness, who thus became the special owner thereof. The same may be said of the bill complaining of similar testimony as to the value of certain underwear found in appellant’s possession. Nor do we think there is any legitimate ground of objection to the question and answer of said witness in regard to his control over certain property, consisting of valves and brass boxes, which were claimed to be a part of said stolen property.

Appellant also has an objection to the testimony of what would be the value of new valves of the kind described by the witness Oglesby, and alleged to have been stolen. The evidence could not have injured the accused, as the testimony of the prosecuting witness, Oglesby, was as to the value of such valves in their condition when taken, and the only effect of such objectionable testimony would be to affect the degree of the offense, as being a misdemeanor or a felony, and, under Oglesby’s testimony as to values, the aggregate value of all the property taken was more than $50.

The record contains three special charges requested by appellant and refused, but in the absence of a statement of facts we are unable to perceive any error on the part of the trial court in refusing the same.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

Appellant files his motion for rehearing, accompanying the same with 'the original statement of facts, and asks that it be considered. The motion will be granted, to the extent of considering said statement of facts.

We have examined the special charges of appellant in the light of the facts adduced. Special charge No. 2 sought to have the jury told that certain of the alleged stolen property belonged to persons other than the alleged owner, and that the case could not be made out without proof of the w<ant of consent and knowledge of the real owners. We think this charge properly .refused, for under the facts, as we understand them, these various articles of property were in the care, control, and management of Mr. Oglesby, who was in charge of the ranch at the time, and in whose care said property had been left by the real owners. In such case, the allegation of ownership was properly laid in Mr. Oglesby, and the special charge did not correctly announce the law applicable.

Appellant’s special charge No. 3 was correctly refused, because of the fact that the same was substantially equivalent to his special charge No. 1, which was given by the court.

The matters complained of in appellant’s bills of exceptions were noticed and passed upon in the original opinion, and we see nothing in the statement of facts to cause us to change our views upon any of them. We have examined the testimony of Mr. Oglesby and Mr. Hill, as contained in the statement of facts, and regret to find ourselves unable to agree with the contention made in appellant’s motion that the testimony of Mr. Hill was of such prejudicial character as to require a reversal of the case. The testimony of Mr. Hill related only to the value of certain of the alleged stolen articles when new, and inasmuch as Mr. Oglesby testified as to their values at the time when taken, and the aggregate value fixed by him upon the property exceeds $50, we are unable to see how the testimony of Mr. Hill was so material as to call for a reversal.

The motion for rehearing will be otherwise overruled, and an affirmance ordered. 
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