
    FRANKLIN v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1911.
    Rehearing Denied Nov. 29, 1911.)
    1. Criminal Law (§ 1172)—Appeai^Harm-LESS ERROR— INSTRUCTIONS.
    In a prosecution for theft, error in the caption of the court’s charge in stating that the case was tried in a county other than that where it was-actually tried, and in failing to state the offense the defendant was accused of, or when or where it was committed, or that defendant pleaded not guilty, was not prejudicial, as the jury must have known where the trial was held and with what crime accused was charged and that he had pleaded not guilty.
    [Ed. Note.—For other eases, see Criminal Law, Dec. Dig. § 1172.]
    2. Criminal Law (§ 829)—Instructions— Definitions.
    In a prosecution for theft of property to the value of over $50, a charge which failed to give the statutory definition of such theft, as prescribed by Pen. Code 1895, art. 858, was not erroneous, where the charge required all the elements of the statutory offense to be found against accused before conviction.
    [Ed. Note.—For other cases, see Criminal Law, Dec. Dig. § 829.]
    3. Criminal Law (§ 1090)—Appeal—Bills op Exception—Necessity.
    Grounds of a motion for new trial complaining of the admission of testimony will not be considered on appeal, where the testimony is not presented by bill of exceptions and is not .even given in tl^e motion for new trial.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2822; Dec. Dig. § 1090.]
    4. Criminal Law <§ 881)—1Trial—Verdict-Sufficiency.
    In a prosecution for theft, a verdict that “we, the jury, find defendant guilty and assess his punishment at two years confinement in the penitentiary,” is not open to objection that defendant was not found guilty as charged.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2089, 2093; Dee. Dig. § 881]
    5. Criminal Law (§ 939)—New Trial— Newly Discovered Evidence.
    A new trial should not be awarded on the ground of newly discovered evidence, unless diligence is shown.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. §§ 2318-2323; Dec. Dig. § 939.]
    6. Criminal Law (§ 1090)—Appeai>-Bills oe Exception—Necessity.
    A motion for new trial on the ground of newly discovered evidence will not be reviewed on appeal, where the evidence is not presented by a bill of exceptions or otherwise.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2822; Dec. Dig. § 1090.]
    7. Criminal Law (§ 1064)—Appeal—Motion eor New Trial.
    A ground for new trial that the court erred in not charging that the witness was an accomplice, and in submitting to the jury the issue whether he was an accomplice, is too general for consideration on appeal.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 2683; Dec. Dig. § 1064.]
    8. Criminal Law (§ 742) — Trial — Questions for Jury.
    Whether a witness was an accomplice is a question of fact for the jury, where his testimony does not clearly show, but merely indicates, that he might have been an accomplice.
    [Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1720; Dec. Dig. § 742.]
    Appeal from Criminal District Court, Galveston County; C. W. Robinson, Judge.
    A. J. Franklin was convicted of theft, and he appeals.
    Affirmed.
    T. C. Turnley, J. T. Wheeler, and O. S. York, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted and convicted of theft of property over the value of $50, and his punishment fixed at two years confinement in the penitentiary. There are no bills of exceptions in the record, except to overruling of the motion fpr new trial, which motion for new trial contains 11 distinct grounds therefor. This is not such a bill, and it is not so drawn or presented as that it can be considered other than the motion for new trial.

The evidence amply and fully sustains the conviction. This is the second appeal in this case. The first is reported in 53 Tex. Cr. R. 547, 110 S. W. 909.

Among other grounds of the motion for new trial it is claimed that because the caption of the court’s charge says that the case is in the district court of, Harris county, when, as a matter of fact, it was in the criminal district court of Galveston county, and that the court in the charge failed to state to the jury with what offense the defendant was charged or the date of the alleged offense or in what county or state it was committed, or that the defendant pleaded not guilty. While it would be better perhaps for the court in the caption of his charge to have correctly stated that the ease was in the criminal district court of Galveston county, instead of Harris county, and to have stated with what the defendant was charged and that he pleaded not guilty, it is too evident to need comment to show that no injury whatever occurred -to the appellant on account of any of these omissions. Of course, the jury knew, and the appellant knew, that he was not being tried in Harris county, but was being tried in Galveston county, and they all knew with what the defendant was charged by the indictment, and that the defendant had pleaded not guilty.

Another complaint of the charge is that the court did not give the statutory definition of “theft” of property of the value of over $50, as prescribed by article 858 of the Penal Code. It is not essential for the court to give this statutory definition where all of the essential elements of the statutory offense are submitted by the court in its charge to the jury to be found against appellant beyond a reasonable doubt, before they could convict, as was done in this case. No injury whatever is shown to have occurred to appellant by reason of the court not giving this statutory definition. A great many cases decided by this court have so held, and it is the uniform holding of this court. See White’s Code Crim. Procedure, p. 513, § 796, and the eases collated there so holding.

Other grounds of the motion for new trial complain of the action of the court in admitting certain testimony; but these matters are not presented by bill of exception, nor is the testimony of the various witnesses given even in the motion for new trial. So that the matter is not presented so as to justify this court in considering these complaints.

Another complaint is that the verdict of the jury was as follows: “We, the jury, find the defendant, A. J. Franklin, guilty and assess his punishment at two years confinement in the penitentiary”—is defective in not stating that the defendant was found guilty as charged. There is nothing in this complaint, as has uniformly been held by this court.

Another complaint is that the court ought to have granted a new trial because of newly discovered evidence. No diligence whatever is shown which would justify the court to grant a new trial, and neither is any such evidence so presented by bill or otherwise to this court so that it can determine the materiality thereof.

Another complaint in the motion for new trial is as follows: “Because the court erred in' not charging the jury that the witness Alphonse Manzapani was an accomplice, and confusing the jury by submitting to them the issue as to whether or not Alphonse Manzapani was an accomplice.” This is too general to require consideration by this court. However, we have carefully read the testimony of this witness, and in our opinion it does not show that this witness was an accomplice. The most that can be claimed is that there are some circumstances which might indicate that he was an accomplice. It is the uniform holding of this court that, when such is the case, the question of whether or- not he is an accomplice, and the weight and effect to be given to his testimony in that event, is properly submitted to the jury, which was done by the court in the charge in this case. There was no error on that account.

No reversible error being shown in the record, the judgment is in all things-affirmed.  