
    MARTIN v. STATE.
    (No. 7916.)
    (Court of Criminal Appeals of Texas.
    June 29, 1923.
    Rehearing Denied Nov. 28, 1923.)
    I.Criminal law <&wkey;>372(5)— Evidence of possession of other stolen property along with property in question is admissible.
    It is permissible to show as a guilty circumstance that one on trial for theft had in his possession, along with the property, the fruits .of the theft in question, other stolen property taken about the same time.
    2. Criminal law &wkey;l 169(11) — Evidence that officers took other oars in addition to alleged stolen car held not prejudicial.
    In a prosecution for theft of an automobile, testimony of officers that in addition to taking the alleged stolen car from accused they took others with them, though irrelevant was not prejudicial in the absence of evidence that the other cars were stolen.
    3. Criminal law &wkey;H030(l), 1048 — Bill of exceptions as to matter not made subject of objection or exception will not be considered.
    A bill of exceptions relating to a matter certified to by the trial court as not having been made the subject of any objection or exception will not be considered on appeal.
    On Motion for Rehearing.
    4. Criminal law <9=3369(2) — To disprove defense of purchase of stolen car, evidence showing alleged stolen car contained parts of another stolen car held admissible.
    Where the purchase of a touring car was accused’s defense against a charge of having stolen it, it was relevant for the state to show that the steering wheel and some of the tir.es on the car, when recovered, were parts of another stolen ear found in possession of accused- s and his companion, such facts tending to rebut his defensive theory.
    5. Criminal law <&wkey;>374 — Relations of accused and his companion to stolen cars and to each other held to support inference they were acting together.-
    Where a stolen touring ■ car and a stolen roadster were found in possession of accused and his companion, accused claiming ownership to the touring car and his companion to the roadster, held that, from the relation of accused and his companion to the cars and to each other, and the condition in which the cars were found with interchanged parts and altered numbers, it could be inferred that accused and his companion were acting together.
    6. Criminal law <&wkey;l 169(11) — Admission of evidence of disposition by officers of another alleged stolen car held not material.
    Where, in a prosecution for theft of a touring car, found in accused’s possession along .with a roadster, evidence was received, without objection, that the roadster, belonging to railroad employees, was also stolen, the mere fact that it was also shown that the roadster was delivered to the railroad commission, if not relevant, was not important.
    cgswPor other cases see same topic and KE 2-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    O'. D. Martin was convicted of theft, and appeals.
    Affirmed.
    Will R. Saunders, of Breckenridge, E. C. Gaines and King & York, all of Austin, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the; State.
   LATTIMORE, J.

Appellant was convicted in the district court of Stephens county of theft of property of the value of more than $50, and his punishment fixed at five years in the penitentiary.

A comparatively new Ford automobile of the value of more than $500 was taken from the possession of its owner on September 22, 1922, and according to the contention of appellant was purchased by him on February 27th following, the purchase being from some stranger to appellant. He testified on the trial that he so purchased said car, and produced a bill of sale and witnesses thereto. The legal questions involved were submitted to the jury so fairly that the record contains no exceptions to the charge of the court. When the car was found, either in the latter part of September or early part-of October, in the possession of appellant, he and a man named Hays were jointly occupying a shack. Behind the,shack was parked the car in question and a roadster found later to belong to employees of the Texas Railroad Commission. The casings, spotlight, and steering wheel of the alleged stolen car were found on said roadster, and parts of the roadster were found on the alleged stolen car.. The numbers of both cars had been changed.

Appellant’s bill of exceptions No. 1 complains that the state was allowed to show that said roadster was turned over to the Texas Railroad Commission. We are unable to perceive any injury to appellant from this testimony in view of the fact that the testimony showed apparently that the roadster in question had on it many of the part? of the alleged stolen car, and we think the state had the right to follow up the roadster so apparently found in the joint possession of the two men.

The effect of testimony showing that the numbers on the roadster had been changed would be to show by circumstances that it also was a stolen ear. /There is nothing in the record, except the statement of Hays made at the time, which rebuts the fact of possession of the roadster also by appellant. It has always been held permissible to show, as a guilty circumstance, that one on. trial for theft has in his possession, along with the property, th.e fruits of the theft in question, other stolen property taken about the same time.

There is a bill of exceptions complaining tliat the witness Casey was permitted to state that he took other cars with him to Graham on the same night that he recpvered the roadster and the alleged stolen car in this case. There is no evidence showing that said, other cars were stolen. While the evi- • dence would seem to be of no relevancy, we are unable to perceive how it could have injured appellant. The same is true of the testimony of the witness Casey that he told Mr. Copeland to exchange any of the parts on the roadster and the alleged stolen car.

The trial court certifies that the matters, set out in bill of exceptions No. 5 as objected to, were not in fact made the subject of any objection or exception.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

The stolen five-passenger Ford car was found near a shack occupied by the appellant and Hays, and apparently occupied by no one else. A Ford roadster was also found nearby. The factory numbers upon each of thé cars had been changed, also the license and seal numbers. The steering wheels and part of the tires on the two cars had been interchanged, and a spotlight which had been on the five-passenger car was found on the roadster. Appellant claimed the ownership of the five-passenger car, and Hays claimed the roadster, and each exhibited a bill of sale. '

Appellant’s defense was the purchase of the touring car. To meet this defense, it was relevant to show that the steering wheel and some of the tireswhich were on the touring car, when recovered, were parts of the roadster which was stolen. These facts brought the appellant into the possession of a part of the stolen roadster and tended to rebut his defensive theory and evidence to the effect that he was an innocent holder by purchase of the touring car. Clay v. State, 85 Tex. Cr. R. 128, 210 S. W. 968; Berry v. State, 87 Tex. Cr. R. 559, 223 S. W. 212; Tillman v. State, 88 Tex. Cr. R. 10; 225 S. W. 165. From the relation of the appellant and Hays to the cars and to each other, and the condition in which the cars were found, with the interchanged parts and altered numbers, the inference was deducible that the appellant and Hays were acting together. There was evidence received, without objection, that the roadster was stolen, and the mere fact that it was also shown that it was delivered to the Railroad Commission, if not relevant, was not important.

As qualified, the bill complaining of the proof that other cars were taken by the officers to Graham that night reveals no error, it appearing from the qualification that there was no evidence that the other cars were stolen cars.

The motion for rehearing is overruled.  