
    HENDERSON v. STATE.
    (No. 3380.)
    (Court of Criminal Appeals of Texas.
    Jan. 13, 1915.)
    1. Criminal Law (§ 1095) — -Appeal—Bill op Exceptions — 1Time poe Presenting.
    A bill of exceptions which was not filed until more than 20 days after the adjournment of the term at which defendant was convicted will be stricken from the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2847; Dec. Dig. § 1095.]
    2. Criminal Law (§§ 365, 371) — Evidence-Receiving Othee Peopeett — Res Gestas.
    In a prosecution for receiving one stolen pool ball, testimony that the accused at about the same time received other balls from the same person is admissible as part of the res gestee and to show intent.
    [Ed. Note. — For other cases, Law, Cent. Dig. §§ 807, 830-832 365, 371.] see Criminal Dee. Dig. §§
    
      3.Receiving Stolen Hoods (§ 8) — Admissibility oe Evidence — Possession oe Peoperty — Acts oe Defendant’s Wife.
    _ Evidence was also admissible that the wife of accused took the stolen ball from a bureau drawer and delivered it to the officers in the presence of accused.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. § 8.]
    4. Witnesses (§ 350*) — Impeachment—Conviction of Crime — Details.
    Where a witness for the prosecution had admitted that he had been convicted of stealing, it is not permissible for the defense to cross-examine him as to the details of such conviction.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1140-1149; Dec. Dig. § 350.]
    5. Cbiminal Daw (§ 713) — Misconduct of Peosecutoe — Argument.
    A statement by the prosecutor in his argument that to turn the defendant loose would invite crime for all other criminals is legitimate.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1663, 1678; Dec. Dig. § 713.]
    6. Cbiminal Daw (§ 829) — Teial—Request-ed Chaeges — Repetition.
    A special charge requested by one accused of a crime which is sufficiently presented in the court’s main charge need not be given.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 2011; Dec. Dig. § 829.]
    7. Cbiminal Daw (§ 956) — New Teial — Evidence — Time fob Filing.
    Evidence in support of a motion for new trial on the ground that the jury discussed the failure of the defendant to testify, which was not filed until 24 days after the court adjourned for the term, cannot be considered.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2373-2391; Dec. Dig. § 956.]
    8. Cbiminal Daw (§ 857) — Trial—Misconduct of Juey — Defendant’s Failuee to Testify.
    A discussion by the jurors during their deliberations of the fact that defendant had offered no evidence is proper, and not a comment on the failure of the defendant to testify in his own behalf.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2054, 2055; Dec. Dig. § 857.]
    Appeal from Tarrant County Court; Jesse M. Brown, Judge.
    Joe Henderson was convicted of receiving stolen property, and he appeals.
    Affirmed.
    Marvin B. Simpson, of Ft. Worth, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was prosecuted and convicted of receiving stolen property— one pool and billiard ball — of the value of $1, and his punishment assessed at 90 days confinement in the county jail.

The term of court at which appellant was tried adjourned on October 31,1914. The bills of exception were not filed until more than 20 days had elapsed after the adjournment of court. Consequently, the motion of the Assistant Attorney General to strike them from the record must be sustained. But, should we consider same, we do not think they present any reversible error. Will Barre testified:

“My name is Will Barre. I live here in Ft. Worth with my mother. • Yes; I know Joe Henderson. I think I have known him two or three years. I was standing in the front door of the Third Street pool hall between 8 and 9 o’clock on the night of September 29th, when he come up to me and said he needed some pool balls, and said if I could get some pool balls he would buy them from me. I said, ‘Well, I will try to get some.’ I left then and went home. I stole a pool ball, No. 7, about 1 o’clock, from Henry Watson’s pool hall on West Weath-erford street. I took this 7 ball up to his room on Weatherford street, and saw him there. He came out of his room and said, ‘Hello, what do you know?’ I said, ‘I’ve got a 7 ball,’ and handed it to him. He took it, but didn’t pay me anything then. He said, ‘Are you going to get some more?’ and I said, ‘Yes; I’m going to try to.’ I went out and met up with Rambert; and we went to Watson’s, where I got two more pool balls, and he got two. We took them up to Joe’s room, but he wasn’t there; his wife said for us to lay them on the floor, so we did so. Then we started down the street and saw Joe Henderson. I said I had four more up there, and asked him how much he was going to pay me for them. He said, ‘About two bits apiece,’ and when I said, ‘All right,’ he said he didn’t have the money then, and only gave me four bits. Yes; this all happened in Tarrant county, Tex. No; I am not in the pool ball business, nor a manufacturer of pool balls, nor a pool ball salesman.”

Appellant objected to the witness testifying that when he met Henderson on the street, after delivering him the first ball, that he said “he had four more up there, and asked him what he was going to pay him.” He insists that as he was charged with receiving only one stolen ball, that the state had no right to prove that he had received five instead. As said in Branch’s Crim. Daw, § 338, when extraneous crimes, or other transaction is res gestee, or tends to show intent, when intent is an issue, or tends to connect defendant with the offense for which he is on trial, it is admissible. Gilbraith v. State, 41 Tex. 567; Dong v. State, 11 Tex. App. 381; Stanfield v. State, 43 Tex. Cr. R. 12, 62 S. W. 917; and other cases cited in that section. He also objected to the officers being allowed to testify that they recovered all five balls, for he contends that he was charged with having received one. This testimony was all clearly admissible, as was the statement that appellant’s wife got the “7 ball” out of the bureau drawer and delivered it to the officer. Appellant was present when the officer called for this ball, and his wife went and got it and delivered it.

When the witness Barre, on cross-examination, testified that he had been convicted of theft, the court did not err in refusing to permit appellant to ask him “of what he had been convicted of stealing, whom he had stolen the property from, and where he had stolen it, and other details.” The fact that he had been convicted of theft was admissible as affecting his credit as a witness, but the remainder of the testimony sought to be elicited was inadmissible for any purpose.

Appellant also complains that the prosecuting officer, in presenting the case said: “Gentlemen of the jury, to turn this defendant loose would invite crime for all other criminals.’’ This remark, if not entirely legitimate, which we think it is, would not present reversible error.

In special charge No. 1 appellant requested the court to give peremptory instructions to acquit. The court did not err in refusing to give the jury such instructions, for the evidence is plain that appellant did receive the stolen property, and the facts and circumstances are such, in our opinion, as to authorize the jury to find that he knew the property was stolen property at the time he received same.

Special charge No. 2 was sufficiently presented in the court’s main charge.

These are all the bills of exception in the record, and the only other ground in the motion for new trial is that the jury discussed the failure of the defendant to testify. The evidence heard on this ground of the motion for new trial was not filed until 24 days after court adjourned for the term, and therefore cannot be considered. Probest v. State, 60 Tex. Or. R. 608, 133 S. W. 263, and cases cited.

We have read the evidence, and it does not show that the failure of defendant to testify was discussed, but only the fact that “defendant had offered no evidence.” This was true, and, while it would perhaps include the fact that he had not testified, yet they had the right to comment on the fact that all the testimony they had before them was that introduced by the state to show his guilt. Some of the jurymen testify they did not know whether or not he would have been permitted to testify, if he had so desired.

The judgment is affirmed. 
      ♦For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes
     