
    PARK v. STATE.
    (No. 3630.)
    (Court of Criminal Appeals of Texas.
    June 25, 1915.
    On Motion for Rehearing, Nov. 17, 1915.)
    1. Larceny <&wkey;55 — Evidence—Sufficiency.
    Evidence held to sustain a conviction of theft.
    
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169; Dee. Dig. &wkey;>55.]
    On Motion for Rehearing.
    2. Criminal Law <&wkey;200 — Separate Offenses — Burglary and Larceny.
    Under Pen. Code 1911, arts. 1317,1318, providing that one who commits burglary, and who while in the house burglarized commits any other offense, shall be punished for burglary, and for the other offense, a theft committed at the same time and in the same transaction of a burglary is separate from the burglary, and accused may be convicted of both.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 347, 386-409; Dec. Dig. &wkey; 200.]
    3. Indictment and Information &wkey;>137 — Quashing Indictment — Grounds—Former Jeopardy.
    That an indictment charges the same offense charged in another indictment under which accused has been convicted is not ground for quashing the indictment, but accused, to raise the point, must plead former jeopardy.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. <&wkey;137.]
    4. Criminal Law &wkey;>730 — Trial — Misconduct of State’s Attorney.
    The act of the state’s attorney in asking, on the cross-examination of accused on trial for theft committed at the time of his commission of a burglary, if he had not been convicted of the burglary was not reversible error, where the court sustained an objection to the question, and. at accused’s request at the time directed the jury not to consider the question, as it had nothing to do with the case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 1698; Dec. Dig. <&wkey;>730.]
    5. Criminal Law <&wkey;1119 — Misconduct of State’s Attorney — Bill of Exceptions.
    A bill of exceptions, complaining of the remark of the state’s attorney when a witness presented and identified an instrument, “They are just taking up the time of the court for nothing,” presents no reversible error, where it does not show how and in what way the remark affected accused’s case.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. <&wkey; 1119.]
    6. Criminal Law <&wkey;1119 — Misconduct of State’s Attorney — Bill of Exceptions.
    A bill of exceptions, showing that accused excepted to the remark of the state’s attorney, after a witness had stated that he did not know the value of automobile tires: “Well, stand aside; if you have not sense enough to know the value of automobile tires, you can go” — presents no reversible error, where it does not attempt to show that accused was injured by the remark.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dee. Dig. &wkey; 1119.]
    7. Criminal Law &wkey;>1120 — Rulings on Evidence-Bill op Exceptions — Sufficiency.
    A bill of exceptions which recites that, at the conclusion of the testimony of a witness, counsel for accused moved to strike out all the testimony of the witness because not qualified' as an expert to testify, and that the motion to strike was overruled, to which ruling accused excepted at the time, but which does not show what the testimony of the witness was, does not show reversible error.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2931-2937; Dec. Dig. <&wkey;> 1129.]
    8. Larceny <&wkey;45 — Evidence — Admissibility.
    Where, on a trial for the larceny of Federal Rubber Company tires, some of the witnesses called the tires “Goodrich tiros” the testimony of a witness, detailing a conversation with accused and a third person about the stolen tires, was properly received in evidence, though the witness, after detailing the conversation, stated that he believed that the third person said that the tires were “Goodrich tires.”
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 135, 136; Dec. Dig. <&wkey;>45.]
    9. Criminal Law <&wkey;1051 — Questions Reviewable.
    Under Code Cr. Proc. 1911, art. 938, providing that the court, on appeal, must presume that the venue was proven in the trial court, unless it affirmatively appears to the contrary by bill of exception, the court on appeal will not consider the question of venue not raised in the case, and 'no bill of exception taken on that question.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. &wkey;>1051.]
    Appeal from District Court, Bastrop County; Ed R, Sinks, Judge.
    F. L. Park was convicted of theft, and he appeals.
    Affirmed, and motion for rehearing overruled.
    G. O. Brown, of San Antonio, Aaron Bur-leson, of Smithville, and John T, Duncan, of La Grange, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDBRGAST, P. J.

Appellant was convicted of the theft of some automobile tires of more than the value of $50, and his punishment assessed at the lowest prescribed by law.

This is a companion ease to 3631 against the same appellant, for burglary, this day decided. 178 S. W. 516. The burglary case was tried first. Much of the testimony is the same in both cases. We have carefully read, studied, discussed, and compared the testimony in each case, one with the other. The testimony in this case is much fuller and of additional facts from what was proven in the burglary case. For instance, in this case the waybill was produced, identified, and introduced in evidence, and the witnesses testified thereabout; it was not introduced in the burglary case. So was other documentary evidence introduced herein which was not introduced in the burglary case.

We think it unnecessary to detail the evidence herein. There is no bill of exceptions in the record, nor is the motion for new trial therein. The only question raised in this court, and so stated by appellant’s attorneys in oral argument when the case was submitted, is whether or not the evidence was sufficient to sustain the verdict; his contention being that it is not. We are of opinion it is. The testimony in this case was sufficient to show, and the jury authorized to find and believe: That the alleged stolen tires were shipped over the Missouri, Kansas & Texas Railway Company of Texas from' Dallas, by the shipper on April 14, 1914, to the consignee at Houston in a through shipment, in car 70181, M., K. & T., waybill No. 1761. That the train on which this car was hauled was hauled by a crew from Dallas to Waco. That appellant received it at Waco and hauled it to Smithville, reaching Smithville at 1:20 p. m. April 16th, where he turned over his papers, including said car and its contents, to the local agent there. After reaching Elgin, going to Smithville with this train, appellant told his engineer that he had this car, that it contained automobile attachments, and that the bottom of the door of the car had rotted off. The car reached Houston, hauled by the third crew from Smithville to Houston on April 17th, and when it reached there the seals of the car were shown to be unbroken, but the door of one side was rotted out some 10 to 12 inches, so that a person could pull the door open from the bottom, get in the ear, take out the tires, and then get out without breaking the seals. That shortly after this car had been hauled from Smithville he and one Terrell, in Smith-ville, approached Mr. Eggleston, an automobile man there, went into Eggleston’s place of business, called him back privately, and asked him if he did not want to buy some automobile tires. Eggleston replied no. They discussed the matter awhile, but on this occasion, when Eggleston asked where he got the tires, he told him that he had pulled the car door open, swung it open from the bottom and had gotten the tires out of a car. After Eggleston refused to buy them, he asked if there was any place there they could hide them, and Eggleston told him, “No.” Another witness testified that about 12 o’clock at night appellant, said Terrell, and one Thurmond hired his buss. The three got in it and had him drive down to the stock pens at the railroad in Smithville. When they reached the stock pens the three got out, were gone about five minutes, and brought back what the witness described and the jury were clearly authorized to believe were automobile tires, put them in the buss, and themselves got back therein. That they drove back towards town again, but before they got there they stopped, all three got out, taking the automobile tires with them, and disappeared. Some of the automobile tires which were shipped in this car and stolen therefrom were afterwards traced to and found in San Antonio and recovered by the railroad. A San Antonio party bought these tires from one Billy Edwards. About this time Phillips loaned Edwards $50, who gave the money to Pred Thurmond, one of the parties who was with appellant and Terrell the night they got the tires when they drove to the stock pens, Edwards stating that the $50 was to pay Terrell for tires that he and appellant were in trouble about, and that he paid the money to Thurmond on the order of Terrell therefor. This is a mere outline of some of the testimony. Taking it as a whole, we think it amply sufficient to sustain the verdict. Whether appellant took, the tires from the ear while it was standing in the yard at Smithville, or took them from the ear before he reached 'Smithville, would be immaterial, for wherever he first took the stolen property he is substantially and reasonably shown to have been in possession thereof with others at Smithville, and hence, under the law, could be convicted in Bastrop county, where he was tried and convicted.

Tins writer is of the opinion that the evidence in the burglary case, while not as full as in this case, was sufficient to sustain the verdict in that case.

After most careful consideration we have reached the conclusion that the evidence is sufficient to sustain the verdict in this case, and the judgment is affirmed.

On Motion for .Rehearing.

After the rendition of the original opinion herein, appellant’s motion was granted for a certiorari to bring up copies of his motion to quash the indictment and his motion for a new trial and his bills of exceptions, which were omitted from the original transcript. The clerk complied and sent up an additional record containing these papers, which are now before us, and they have been duly considered.

Appellant’s motion to quash the indictment gives as the only reason therefor “that on yesterday, E'ebruary 1, 1915, this defendant was tried and convicted in State v. E. L. Park, No. 20-40, in this court, for the offense of burglary of a railroad freight car, charged to have been in possession of J. T. Hungate,” who is the agent of a certain railroad company, and given two years in the penitentiary, and claiming that he cannot be twice put on trial for the same offense. This case charges him with theft, not burglary. A conviction for theft committed at the same time, in the same transaction of burglary, is not the same offense, and accused can be convicted of both, as expressly provided by our statute. P. C. arts. 1317, 11318, and cases cited thereunder. Besides, even if they were the same offense, it would be no ground to quash the indictment, but must be properly pleaded as jeopardy.

Appellant again, in his motion for rehearing, as was done when this cause was at first submitted, earnestly contends and argues to a considerable extent that the evidence was insufficient to sustain the verdict. Each member of the court has read and studied the evidence. We adhere to the original opinion that the evidence was sufficient.

In his first bill of exception it is shown that the state’s attorney asked appellant, on cross-examination, for the purpose of impeachment, if he had not the day before been convicted of burglary. He objected to this question. The court sustained the objection and, at his request, at the time, instructed the jury that they were not to consider the question at all; that it had nothing whatever to do with the case one way or another. Notwithstanding this, appellant excepted to the mere asking of the question. This bill presents no reversible error. Martoni v. State, 167 S. W. 351, and authorities there cited; Sweeney v. State, 146 S. W. 883, and authorities there cited.

Appellant’s next bill, after the proper style and the usual “Be it remembered,” states that “the fcttlowing proceedings were had,' to wit. Then follows more than two pages of typewritten matter, which consists of questions asked, objections made, ruling of the court, answers of the witness, and the. remarks of the attorneys for both sides. On the first page the only thing we can see that he complains of to which he excepted is that, in a brief argument, when the witness Vann presented and identified the original waybill for the shipment of the tires alleged to have been stolen, this remark of one of the state’s attorneys was made: “They are just taking up the time of the court for nothing.” How and in what possible way that injuriously affected appellant's case we are unable to see, and he in no ■way attempts to show in the .bill, and, of course, it presents no reversible error. On the next page of this bill and what follows on the page following, there appears to be nothing to which appellant excepted at the time, and no error is presented thereby.

His next bill is in form exactly similar to the preceding one. .It appears from it that the state introduced Harry Young for the purpose of attempting to prove the value of the alleged stolen tires. The witness did not qualify so as to testify to the values, and did not testify to the values. The closing remark of the prosecuting attorney after the witness had stated that he did not know the value so as to testify to it was this:

“Well, stand aside; if you have not sense enough to know the value of automobile tires, you can go,”

—and to this remark appellant excepted, but no reason is given, and no possible injury is attempted to be shown to appellant by the attorney’s remark.

His next bill is in the same style exactly. This bill shows nothing whatever was testified to by the witness Campbell to which he excepted. On cross-examination the appellant’s attorneys asked him this question: “Did he tell you who got those tires at the place where' you found them? [two additional tires found in shop at rear of Bexar Hotel].” The state’s counsel objected. The court sustained the objection,' and the defendant excepted. This in no way showed any reversible error.

His next and last bill after the style of the cause states:

“At the conclusion of the testimony of Mr. J. W. Vann, a witness for the state, counsel for defendant moved the court to strike out all the testimony given by said witness as to the value of the tires, because he is not qualified, not an expert, and knows nothing about the value of tires. The motion to strike out was overruled, to which ruling of the court defendant excepted at the time.”

This, as it is presented, shows no reversible error. It in no way shows what the testimony of the witness was, or anything other than as quoted above.

The next matter presented in this same said last bill is this:

“When the state had rested, counsel for defendant moved the court to strike out all the testimony of the witness Eggleston in regard to the conversation he had with defendant, F. L. Park, and William Terrell, because that conversation was about some Goodrich tires, when all of the state’s testimony shows that the tires alleged to be stolen were Federal Rubber Company tires; also moved the court to instruct the jury to return a verdict for defendant, because the state had failed to make out a case. The motions were overruled. Defendant excepted.”

This, as presented, shows no error; but, if we could look to the record otherwise for the testimony of E'ggleston, it would clearly show, in connection with the other testimony in the case, that the conversation appellant and Terrell had with him was unquestionably about the stolen tires. Eggleston, after detailing in full material testimony, says that, in the conversation with Terrell regarding the tires, “I believe he said they were Goodrich tires.” Another witness says that some others called them Goodrich tires, but the testimony of other witnesses shows that they were not Goodrich tires, but Federal Rubber Company tires. Even, if it had been conclusively shown that they were Federal tires, it would not justify the court to strike out his testimony because he said he believed Terrell said they were Goodrich tires. All that would be a matter of argument before the jury. The jury was entitled to the evidence, together with the other records, so as to properly pass upon the questions submitted to them.

In the original opinion, we said that, whether the appellant took the tires from the car while it was standing in the yards at Smithville, or from the car before he reached Smithville, would be immaterial,- for wherever he first took them he is substantially and reasonably shown to have been in possession thereof with others at Smithville, and hence, under the law, could be convicted in Bastrop county, where he was tried and convicted. Appellant contends that, as the indictment charges that the property was taken from the possession of Hungate, who was the local agent of the company at Smithville in Bas-trop county, if the property was taken by appellant before it reached the possession of Hungate at Smithville, the conviction could not be sustained, because the theft would not have been from Hungate. "What was said by the court in the original opinion was wholly unnecessary, and was on the question of the venue. The question of venue was not raised in the case, and no bill of exception, which is required by the statute, was taken on that question at all, so that, whether the statement by the court in the original opinion was correct or incorrect, it has nothing to do with the merits of the case, nor with the question of venue, as that question was not raised, as required by the statute. C. G. P., art. 938.

The motion is overruled. 
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