
    MATHEWSON v. STATE.
    (No. 7223.)
    (Court of Criminal Appeals of Texas.
    April 18, 1923.)
    1. Larceny &wkey;>32(6) — indictment for theft alleging ownership of coat in corporation president held not defective.
    An indictment charging the theft of an overcoat stolen from a corporation held hot defective because it alleged ownership of the coat in-the president of the concern, rather than in the manager of the clothing department from which the coat .was stolen.
    2. Larceny &wkey;>55~Evidence held sufficient to sustain conviction for theft of overcoat. .
    Evidence held sufficient to sustain conviction for the theft of an overcoat from a clothing store.
    3. Criminal law <&wkey;l I¿0(3) — Excluding an-, swer to question held not reviewable in absence of showing what answer would have been.
    In a prosecution for the theft of an overcoat, the action of the court in sustaining an objection to a question as to what the wholesale price of the coat was held not reviewable in the ábsence of any showing what the excluded answer would have been.
    4. Criminal law <&wkey;>792(2) — In 'prosecution for theft, chargie upon principals held warranted.
    In a prosecution for the theft of an overcoat, where it appeared that defendant and his wife, after purchasing a collar, asked if they might use the telephone, and while defendant was so using it his wife apparently selected an overcoat from a nearby rack, which defendant carried out with him as he left, held, that the court was fully warranted in charging upon principals.
    Appeal from Criminal District Court, Tar-rant County; George E. Hosey, Judge.
    Earl Mathewson was convicted of theft, and he appeals.
    Affirmed,
    gee, also, 241 S. W. 1013.
    Jesse M. Brown, Criminal Dist. Atty., of Fort Worth, and R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Under an indictment charging appellant with theft of an overcoat of the value of $55 from one W. C. Stonestreet, he was convicted, and his punishment assessed at five years’ confinement in the penitentiary.

A mercantile establishment under the name of Stonestreet & Davis was doing business in the city of Fort Worth. It was an incorporated concern, Stonestreet being president, and in active charge and control of the store at the date of the alleged offense. At the time of the alleged theft he had stepped out of the store to lunch, being absent for about 30 or 40 minutes, -during which time the property in question was taken. W. A. Ounningham was manager of the clothing department, from which the coat was taken. A question is raised by appellant that the indictment should have charged ownership in Cunningham, instead of Stonestreet. To this contention we cannot agree. The evidence shows that Stonestreet had general management and control over all the departments in the store. Cunningham was only in charge of the clothing department, with other men in charge of other departments, but Stonestreet had general control over the entire establishment. Ownership was therefore properly alleged in him.

Appellant and his wife came into the establishment in question, and Mr. Perrin, one of the salesmen in the store, sold him a collar. After appellant put the collar on he asked permission to use the telephone, which was on a desk near the side door, and about three feet from the cabinet in which the overcoats were hanging. Perrin was waiting on another customer, but at the same time was watching appellant and his wife. While appellant was ostensibly talking over the telephone, his wife was handling the overcoats hanging in the cabinet, and a conversation seemed to have been going on between her and appellant, although Perrin- was at such a distance he could not hear what was being said. Immediately after appellant hung up the telephone his wife handed him an overcoat, which she took from the cabinet; he placed it on his arm, and placed over it his own overcoat, which he had brought into the store with him, and the two passed out through the side door into the street. Perrin called to Cunningham, and they immediately pursued them. As soon as appellant observed they were being followed he and his wife separated. Appellantf ran several blocks, across the street and up an alley. Perrin was close in pursuit, and saw him pass in the back door of a restaurant; the coat was discovered immediately thereafter hanging upon a rack in this restaurant. A customer in the restaurant at the time saw appellant hurriedly enter the back door,, hang up the overcoat, and run out the front door.

There is no basis for the contention that the evidence is insufficient to support the conviction. The evidence is positive that the reasonable value of the overcoat in Fort Worth at the time of the theft was more than $50. While Stonestreet was upon the witness stand he was asked by appellant what they paid for the coat; in other words, what the wholesale purchase' price of it was. Objection that this testimony was immaterial was sustained by the court, and a bill of exception to this ruling is in the record. It is incomplete, however, in that it fails to show what the answer would have been to the question, and is therefore not subject to review.- Section 212, p. 135, Branch’s Ann. P.' C.

Complaint is made by' exception to the charge of the court in a number of particulars. We have examined it in the light of the exceptions, and fail to find any valid objection thereto. The court was fully warranted in charging upon principals. The evidence rais.ed the issue that appellant and his wife were acting together in the theft of the coat. His immediate flight therewith confirms this theory.

Finding no error in the record, the judgment is affirmed. 
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