
    JONES v. STATE.
    (No. 11070.)
    Court of Criminal Appeals of Texas.
    Nov. 16, 1927.
    Rehearing Denied Jan. 18, 1928.
    1. Indictment and information <&wkey;432(7)— Overruling motion to require election between counts charging larceny and receiving stolen property held not error, under evidence.
    Where evidence in record' tended to sustain each of two counts of indictment charging theft of property and knowingly receiving and concealing such property, overruling motion to require district attorney to elect on which count he would seek conviction was not error.
    2. Jury <&wkey;99(8) — Overruling challenge for cause to juror in criminal prosecution held not error, where opinion formed was not result of conversation had with prosecuting witness which didi not disclose facts of case.
    Where juror, in prosecution for larceny and receiving stolen property, admitted having-talked to prosecuting witness, and having formed opinion from hearing other persons talk about case, but denied having any opinion as to guilt or innocence of defendant, overruling challenge for cause was not error, since it did not appear that juror’s previous opinion was formed from talking to prosecuting witness.
    3. Criminal law <&wkey;-l 173(2) — In prosecution for receiving stolen property from unknown- person, refusal to> submit issue whether state’s witness claimed to have stolen property was accomplice held not prejudicial.
    In prosecution for fraudulently receiving stolen property from unknown person, refusal to submit issue whether state’s witness, whom defendant claimed was the thief, was an accomplice, was not prejudicial, since evidence of defendant himself that he had purchased property at price representing about one-third of its value rendered testimony of state’s witness unnecessary to convict.
    On Motion for Rehearing.
    4. Criminal law <&wkey;l09I(4) — Bill merely alleging absence of search warrant as ground for objection is insufficient without recital that . warrant was actually lacking.
    Bill of exception, alleging admission of testimony of officers relative to search, over objection that they had no warrant, should contain certificate or recital that they lacked warrant, and mere statement of ground of objection 'is insufficient.
    5. Searches and seizures <&wkey;7(27)— Objection to search without warrant held waived by consent to search. ’
    Where officer had consent to search automobile for alleged stolen property, objection that officer made search without search warrant was waived.
    6. Criminal law <&wkey;d 119(2) — Bill complaining of leading questions, without excluding possibility of witness being hostile, held not to show error.
    Bill of exception, complaining that court permitted state’s counsel to ask witness leading questions, held) pot to show error, where bill did not exclude possibility that witness may have been hostile.
    Commissioners’ Decision.
    Appeal from District Court, Throckmorton-County; Bruce W. Bryant, Judge.
    M. Jj. Jones was convicted of fraudulently receiving and concealing stolen property, and he appeals.
    Affirmed.
    Odell & Owens, of Throckmorton, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is fraudulently receiving and concealing stolen property ; the punishment, confinement in the penitentiary for two years.

The indictment contains two counts. The first count charges appellant with the theft of property over the value of $50, and the second count with knowingly receiving and concealing such property. The court submitted both counts to the jury, and a verdict was returned against appellant finding him guilty under the second count. After the state rested its case, appellant moved the court that the district attorney be required to elect the count of the indictment upon which he would seek a conviction. The court did not err in overruling appellant’s motion. There was evidence in the record tending to sustain each count. Houston v. State (Tex. Cr. App.) 47 S. W. 468. See, also, Longoria v. State, 80 Tex. Cr. R. 121, 188 S. W. 987; Strickland v. State, 101 Tex. Cr. R. 531, 276 S. W. 429.

Appellant assigns as error the overruling of his challenge for cause to the juror O. E. King. At the time of the challenge, appellant had exhausted his peremptory challenges, and was forced to take the juror. Ap-* pellant’s bill of exception shows that the-juror stated that he had talked to the prosecuting witness, but that he did not tell him what the facts were in the case; that he had heard other folks talk about the case, and that he had formed an opinion from what he heard, but that he had' not formed an opinion as to the guilt or innocence of appellant; that he would try the case, if taken as a juror, solely according to the law given him in charge by the court and the evidence adduced on the trial of the case. If the juror had formed an opinion as to the guilt or innocence of appellant, it is not disclosed that such opinion was formed from talking to the prosecuting witness. He stated that the witness did not state any of the facts to him. The bill manifests no error.

Appellant complains of the action of the court in refusing to submit to the jury the issue as to whether the state’s witness, Charlie Hobbs, was an accomplice. An inspection of the record convinces us that, under the evidence, a charge submitting such issue was not required. Appellant and Francis Gober were found together in possession of twelve or thirteen pairs of trousers, three or four pairs of shoes, two or three pairs of slippers, a pair of oxfords and other property, which was shown to have been stolen by some person or persons from H. S. Neely. The witness Charlie Hobbs testified that, shortly prior to the burglary of Neely’s place of business and the theft of his property, Francis Gober told him that he had a key which he found in some trousers in the tailor shop where he worked, and asked him if he would like to help him “pull a job.” The witness declined. The witness Neely testified that he patronized the tailor shop where Francis Gober worked, and that he had had some clothes pressed there, and had lost the key to his store. Testifying in his own behalf, appellant stated that he bought the property found in his possession from the witness Charlie Hobbs, paying him $15 for an overcoat, three pairs of pants, and three pairs of shoes; that Hobbs told him he would place the property under a culvert about two miles from town; that, at the time he made the contract with Hobbs, he paid him for the property, and later went to the culvert about sundown, and found the articles he had purchased; that he thought there was something suspicious about buying clothes and having them delivered under a culvert two miles from town. The witness Hobbs denied that he sold the property to ap-Xiellant, and stated that he had nothing to do with the stolen goods. The record shows that the property claimed by appellant to have been purchased from Hobbs had a value of approximately $47. Thus it is seen that appellant, according to his testimony, bought said property at a price representing about one-third of its value.

Appellant was.convicted of fraudulently receiving the stolen property from some person to the grand jurors Unknown. If the witness Hobbs was the thief, his testimony was in no sense essential to the conviction of appellant. In this condition of the record; we would not be authorized to reverse thr case on account of the matter complained in appellant’s bill of exception. Fisher v. State, 81 Tex. Cr. R. 568,197 S. W. 189; Wilkerson v. State, 93 Tex. Or. R. 50, 245 S. W. 430; Forson v. State, 90 Tex. Cr. R. 271, 234 S. W. 913.

We have carefully examined the remainder of appellant’s bills of exception, and find that they do not manifest reversible error.

Finding no error, the judgment is affirmed.

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.

On Motion for Rehearing.

HAWKINS, .1.

Appellant contends that our holding as to the court’s action relative to the juror King cannot be reconciled with Collins v. State, 84 Tex. Cr. R. 228, 206 S. W. 688; Jester v State, 100 Tex. Cr. R. 409,273 S. W. 570; and Quinn v. State, 51 Tex. Cr. R. 155, 101 S. W. 248. In Collins’ Case it is stated that the juror who had an opinion could have reached it in no other way than by conversation with the witness. The same is true in Quinn’s Case. In Jester’s Case the jurors had formed opinions from personal examination of physical evidence introduced by the state upon which in part reliance was had for conviction. In the present' case the witness made no statement of the facts to the juror from which the opinion could have been formed.

We have again examined the facts, and think the holding in the original opinion relative to the failure of the court to submit the issue as to whether Hobbs was an accomplice is supported by the authorities therein collated.

Appellant complains because evidence was admitted as to the finding of certain goods claimed to have been taken from the burglarized store in an automobile in which appellant and others were riding. The objection interposed was that the officers had no search warrant. The bill might well be dismissed from consideration with the statement that the claim of no search warrant appears in the bill as a ground of objection only; there being no certificate or recital that such was a fact. Many of appellant’s bills are in the same condition. With reference to the particular bill mentioned, we find that the officer testified that he had consent to search the car. See Hall v. State, 105 Tex. Cr. R. 365, 288 S. W. 202, in which many authorities are collated upon the question of the waiver of warrant.

Appellant further complains ’that the court permitted leading questions to be asked by the state of its witness Hobbs. There is nothing in the bill to exclude the idea that Hobbs may have been a hostile or an unwilling witness.

“A bill of exceptions taken because of leading questions must affirmatively exclude any idea that under the peculiar’ circumstances of the particular case the court was justified in permitting the state to ask leading questions, and if it does not do so no error is shown.” Montgomery v. State, 4 Tex. App. 140.

In Branch’s Ann. Tex. P. C. § 159, many other authorities are collated which support the text quoted. The bill is defective for the omission mentioned.

There may be found in the record in this case 29 bills of exception. Manifestly the time of this court cannot be taken up in a seriatim discussion of them. Each one has been examined in the light of appellant’s motion. Some are defective, and none of them manifest error.

The motion for rehearing is overruled. 
      <&wkey;For otber cases see same topic and KEY-NÜMBER in all Key-Numbered Digests and Indexes
     