
    YOUNG et al. v. STATE.
    (No. 5692.)
    (Court of Criminal Appeals of Texas.
    Feb. 25, 1920.)
    Cbiminal law <⅜=>396(2), 408, 448(2) — Statements BY DEPENDANTS AS TO PAYMENT FOB STOLEN AUTOMOBILE ADMISSIBLE.
    In a prosecution for the theft of an automobile, evidence of statement made by one defendant in a conversation with the owner when they offered to pay for the machine, wherein such defendant stated that he was out on suspended sentence and did not desire to get an additional term, held admissible as an admission, and the statement that such defendant was out on suspended sentence was not a conclusion, but admissible as a part of a conversation brought out by defendant.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    Rink Young and Henry Anderson were convicted of theft, and they appeal.
    Affirmed.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellants were convicted of theft of an automobile; their punishment being assessed at five years each in the state penitentiary.

The record contains but (one bill of exceptions. It shows the following proceedings occurred. This question was asked a witness for the state by the district attorney: “What, if anything, was said by them about a suspended sentence?” Defendants objected to the question as being suggestive and leading, and has nothing to do with the ease, and as attempting to put in issue the character of the defendants.

“The Court: I don’t know what it is.
“Defendants: Object to anything about suspended sentence. I don’t think it is proper, and I ask that the jury be withdrawn for the present.
“The State: I will tell the court what it is.”
The bill recites that the prosecuting attorney, out of the hearing of the jury, informed the court what he expected to prove, but it is not stated in the bill what the evidence was or expected to be.
“The Court: If that is it — if they told him that, go ahead.
“Q. What was said?
“Defendants: Object to anything about a suspended sentence.”
This was overruled, and the following answer made:
“For me to get the money the next day at Mr. Heidingsfelder’s, Rink Young, that fellow on the right there, said, ‘Hell,’ four years would kill him to be in the penitentiary, and that Anderson, said to me—
“Q. What did he mean about four years? A. He said he already was on a two-year suspended sentence.
“The Defense: Object to that as a conclusion of the witness.
“The Court: You have got your bill.”

This is the bill of exceptions.

The fact that Young was already under a two-year suspended sentence was not a- conclusion, as contended by appellants in their objection to that answer. What the conversation was outside of that narrated is not shown by the bill of exceptions. The statement of facts, if we refer to the evidence, shows that after the auto had been stolen these defendants approached the alleged owner and offered to pay him for the car if he would meet them the following morning at a specified hour at Mr. Heidingsfelder’s office, and in that conversation one of them stated as his reason that he did not want to go to the penitentiary for an additional term to. the suspended sentence, or for the two terms combined, whatever might be the conviction under this indictment. It was a part of the conversation and statement by one of the defendants which might be held as an admission of the auto theft and an offer to pay for the car in order to avoid going to the penitentiary. We are of opinion the manner in which it was presented, it being a part of the conversation brought about by the defendants, that it was introducible; but the bill does not show any error with reference to the objection stated to the introduction of it as being a conclusion.

The judgment, we think, ought to be affirmed ; and it is so ordered. 
      (S^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     