
    ANDERSON v. STATE.
    (No. 11842.)
    Court of Criminal Appeals of Texas.
    June 20, 1928.
    1. Criminal law <§=>537— Defendant’s statement, contemporaneously with statement leading to discovery of stolen property, that he burglárized garage from which taken, held admissible.
    In trial for theft, defendant’s statement to officers as part of, and contemporaneously With, statement found to be true by discovery of part of stolen property, that he burglarized garage from which property was taken, held admissible.
    2. Criminal law <§=>1169(2) — Admission of testimony as to facts, already testified to by other witnesses without objection held not available error.
    Admission of testimony as to statements by defendant at police station while under arrest held not available error, where other witnesses had testified to same facts without objection.
    3. Criminal law <§=655 (5) — Court’s remark, In charging jury to disregard prosecuting attorney’s remark concerning defendant’s alleged written statement, that presence of typewriter would indicate what was done, held not improper.
    Court’s remark, in charging jury not to consider prosecuting attorney’s remark concerning defendant’s alleged written statement, which was not set out, that “the witness says that the typewriter was there — that would indicate what was done,” held not improper as comment on weight of testimony or indication of court’s view about case.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    L. D. Anderson was convicted of theft, and he appeals.
    Affirmed.
    B. L. Palmer, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   1ATTIMORE, J.

Conviction for theft; punishment, two years in the penitentiary.

The facts show that, in consequence of a statement made by appellant, certain stolen property was found. Appellant in that connection admitted his guilt, with another party, of the taking of said property.

There are four bills of exception. Bill No. 1 complains of the admission in evidence of a statement by appellant to the officers to the- effect that he in company with one Mack-ey had burglarized the garage from which the stolen casings and tubes were taken. It appears from the court’s qualification to this bill of exceptions that the statement objected to was a part of and contemporaneous with the statement found to be true by discovery of part of the stolen property. We think the entire conversation admissible, and that no error appears.

The second bill of exceptions complains of certain statements made by appellant on the day following his arrest, and while under arrest and at the police station. An examination of the record in this case shows that witnesses Hanna and Raney both testified to the same facts as those objected to, without objection, before the witness Trammell was put on the stand. In. a number.of recent cases this court has adhered to the rule that, where evidence is before the jury without objection, a subsequent objection to the same testimony will be of no avail. McLaughlin v. State (Tex. Cr. App.) 4 S.W.(2d) 54. Bill No. 3 as qualified presents no error.

Bill No. 4 objects to a remark made by the court in charging the jury not to consider a statement made by the prosecuting attorney. ' It seems that appellant objected to the remark of the prosecuting attorney concerning a .written statement, which written statement is not set out, and nothing further concerning its attitude before the court appearing, the judge presiding, in reply to an objection of counsel for appellant, after saying that there was no evidence on the trial to show that any written statement had ever been made by the defendant, said:

“The witness says that the typewriter was there — that would indicate what was done, but I will charge the jury not to consider it.”

We find nothing in the remark of the court violative of any of the rules forbidding the judge „to comment on the weight of the testimony or to make any remarks indicating his view about the case.

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