
    FRAZIER v. STATE.
    (No. 6950.)
    (Court of Criminal Appeals of Texas.
    Jan. 24, 1923.)
    1. Criminal law <®=o597(l) — Not error to refuse continuance to procure testimony shown to be false.
    Denial of a motion by accused for continuance, to secure the testimony of witnesses, was not error, where other testimony showed the proposed testimony -to be false.
    2. Crimina! law &wkey;>l 169(2) — Admission of testimony held not prejudicial.
    In a prosecution for the theft of property valued at more than $50, testimony of a witness that “I did not see the defendant or the woman I understand was with him while they were in the store,” and that “Mrs. Woodruff first called my attention to the fact some one had taken the goods out of the store,” was not prejudicial, in view of the testimony of other witnesses that they had seen accused and his companion come out of the store together.
    Appeal from District Court, Ellis County; W. L. Harding, Judge.
    W. E. Frazier was convicted of theft of property of ipore than $50 in value, and he appeals.
    Affirmed as modified.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for the theft of property of more than $50 in value, punishment being assessed at confinement in tbe penitentiary for a term of 5 years.

Frank Rodgers was manager of tbe dry goods store of Cheeves Bros. & Co., Waxa-liaehie, Tex. Appellant was charged with hav" ing stolen two ladies’ coat suits from said Rodgers. On the day of the alleged offense, Mrs. Woodruff, who had charge of the ladies’ ready-to-wear department in said store, discovered appellant and a woman, who was afterward identified as Peggy Frazier, in the store, appellant sitting in a chair with a raincoat near him on a table. Peggy Frazier was looking through the ready-to-wear suits on the rack. Mrs. Woodruff inquired of her if she desired to purchase anything, but was told that she was only waiting for her people who were in the store. Some 20 or 30 minutes later Mrs. Woodruff again approached her and asked the same question and received the same reply. She later .observed appellant and the woman Peggy Frazier going out of the store together, and noticed that appellant had a bulk of something under his raincoat. She followed them to the door and, after reaching the sidewalk, appellant and Peggy Frazier separated, he running across the street and up an alley. The witness Alderdice noticed appellant walking at a fast gait, seeming to be in a hurry, passing through an alloy, and observed something hanging from under the raincoat which looked like a tassel or fringe of a dress. Appellant’s action excited this witness’ suspicion, and he reported the matter to the city marshal, and they followed appellant and. found him -in the cemetery. When Alderdice first noticed him he had on his coat. When they found him at the cemetery he had taken his coat off and had it and the raincoat both on his arm and was walking back toward town at that time. Pie was hot and had been running. Two other witnesses saw a man answering the description of appellant pass through the cemetery with a raincoat over his arm and saw him go to a hedge and crawl under it. After the man left, these two witnesses went to the hedge and found, covered up under some straw, two ladies’ dress suits, < which they returned to the officers, and which were afterwards identified oy Mrs. Woodruff and Mr. Rodgers as having been taken from the store.

There are only three bills of exception in the record. Appellant filed an application for a continuance for three witnesses, setting out therein the evidence he expected to elicit from them. We deem it unnecessary to set out in detail what the purported testimony was expected to be. In approving the bill, the court does so with the following qualification:

“After hearing the testimony in the case, the court was of the opinion that the facro which it was claimed in the application for continuance could be proved by said witnesses were untrue.”

We think from an examination of the facts there can be no question as to the correctness of the conclusion reached by the trial judge. If the witnesses had been present and had testified, as claimed they would do, the other evidence disclosed by the statement of facts makes apparent the falsity of their proposed testimony. Under such circumstances, there was no error on the part of the court in overruling the application.

The witness Rodgers testified:

“I did not see the defendant or the woman I understand was with him while they were in the store, but did see the woman up on Jefferson street when Mrs. Woodruff, went up there with me. Mrs. Woodruff first called my attention to the fact some one had taken the goods out of the store, and pointed out where the woipan was, and I went out to where she was.”

Appellant objected to that portion of the testimony of witness Rodgers in which he used the following expression:

“I did not see the defendant or the woman I understand was with him while they wére in the store.”

And also to that part where he says:

“Mrs. Woodruff first called my attention to the fact some one had taken the goods out of the store,” etc.

In view of the fact that Mrs. Woodruff testified positively identifying both appellant and Peggy Frazier as having been in the store together, under the circumstances heretofore detailed, and the fact that other witnesses saw them go out of the store together, would not render the testimony hurtful to appellant, even if inadmissible.

The only other exception presented in the record is an objection to the court’s charge. We have examined same and can find no error therein. The objection is directed to that portion of the charge in which the jury are told that if appellant, “either alone, or acting with one Peggy Frazier, did fraudulently take from the possession of Frank Rod¿ers,” etc. Under the facts disclosed by the record this charge occurs to us to have been appropriate and not objectionable. There were two counts in the indictment— one. charging theft, the othbr receiving and concealing stolen property. Only the count for theft was submitted to the jury, and they were instructed to disregard the second count. The verdict specifically found appellant guilty under the first count in the indictment, which charged theft.

We observe that the judgment and sentence failed' to follow the verdict, in that the judgment condemns appellant to be guilty. V both the offense of theft and also of receivin& stolen property, and the sentence follows the judgment. Under the charge of the court, there is no ambiguity in the verdict, and the judgment and sentence will be corrected so as to conform to the verdict, and adjudge appellant to be guilty of theft only, and the clerk of this cburt will correct this sentence and judgment accordingly.

With this correction, the judgment of the trial, court is affirmed. 
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