Opinion
No. 13911.
Delivered March 11, 1931. Rehearing Denied June 10, 1931. Reported in 39 S.W.2d 49.
1. — Theft — Charge — Bill of Exception.
In prosecution for theft, where special charges were refused and it does not appear that any exception was reserved, no question is presented for review.
2. — Theft — Evidence.
In prosecution for theft of automobile, the evidence sustains the verdict.
ON MOTION FOR REHEARING.3. — Theft — Evidence — Recent Possession.
In prosecution for theft of automobile, the possession by appellant unexplained of parts of the recently stolen automobile was sufficient to identify him as the one who took the automobile.
4. — Theft — Circumstantial Evidence — Charge.
In prosecution for theft of automobile, the jury were properly instructed upon the law of circumstantial evidence.
Appeal from the District Court of Stephens County. Tried below before the Hon. P. A. Martin, Judge.
Appeal from a conviction for theft; penalty, confinement in the penitentiary for two years.
Affirmed.
The opinion states the case.
V. L. Shurtleff, of Breckenridge, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
Conviction is for theft of an automobile belonging to W. W. McCallie; punishment was assessed at two years in the penitentiary.
No bills of exception are brought forward. Two requested special charges were refused, but it does not appear from any notation thereon that any exception was reserved to the action of the court in declining to give them. They are only indorsed "refused" over the judge's signature. In such condition they may not be considered. See Linder v. State, 94 Tex. Crim. 316, 250 S.W. 703, in which the question was discussed at length in both the original opinion and the opinion on rehearing, and many authorities referred to. See also Cunningham v. State, 97 Tex.Crim. Rep., 262 S.W. 491; Benson v. State, 105 Tex.Crim. Rep., 287 S.W. 1097.
The car was stolen on a Sunday night from a point near a church in the city of Breckenridge where it had been driven by McCallie's wife. The car was discovered on Wednesday near a creek about two miles from the city. It had been stripped of practically all removable parts, including the casings, tubes and rims. In fact, about all that remained of the car was the body and the top. Some of the casings and tubes had certain marks or peculiarities about them by which the owner could identify them. A few days after the theft appellant was arrested in Mineral Wells where he was trying to sell casings and tubes which he then had in his possession, some of which were positively identified by McCallie as those taken from his car. If appellant made any explanation of his possession of the stolen property at the time of his arrest it is not disclosed by the record. No testimony was offered by appellant on the trial. The evidence sustains the conviction.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
That an automobile was stolen is definitely shown by the evidence. After being stolen it was removed from the street in Breckenridge to a point some distance from that city, and the movable parts thereof taken away. Some of these parts were afterwards found in the possession of the appellant. Such finding affected him as the possessor of recently stolen property, and such possession, unexplained, together with the other facts mentioned, was sufficient to identify him as the taker of the automobile. The precedents upon the subject are numerous. Many of them are cited by Mr. Branch in his Ann. Tex. P. C., secs. 2463-2465, inclusive.
The jury was adequately instructed upon the law of circumstantial evidence, and their finding under the record is binding upon this court.
The motion is overruled.
Overruled.