Conviction for theft; punishment, two years in the penitentiary.
We deem the evidence sufficient to support the finding of the jury, and see no need for setting same out at length. J. C. Wilson drew out of a bank $1500.00 and took it to a room where appellant and one Davis were. The money was to be used in consummating a deal or supposed deal between the parties. While the parties were in the room this appellant picked up the money referred to and put it in his pocket and walked out. Wilson remonstrated and demanded that the money be turned over to him. Apparently appellant and his confederate Davis claimed that the deal was to be consummated when they reached their car. They went downstairs, Wilson following them. When appellant and Davis got to their car they got in. Wilson told them if they did not give him back his money he would call the sheriff. They drove hurriedly away, and were arrested later that night in an adjoining county. On the trial of this case neither appellant nor Davis testified, nor offered any evidence to combat the testimony of Wilson in regard to the facts above stated.
Appellant's legal contention appears to be that the theft, if any, should be prosecuted as theft by bailee, and that the facts do not make out a case of ordinary theft. We do not agree with this contention, and think the facts sufficient to show that the money in question was taken from Wilson without his consent and with the intent on the part of appellant to appropriate it to the use and benefit of himself and Davis.
We have examined appellant's exceptions to the court's charge but are unable to believe any of them are meritorious. We see nothing in the fact that the court submitted the case *Page 636 on the theory that appellant and Davis were principal offenders in the commission of whatever crime, if any, was committed.
The court told the jury as follows:
"In this case the defendant, Dewey Cates, alias Miller, has not taken the stand to testify. You will not consider, refer or allude to such fact for any purpose whatsoever."
We see no meritorious ground of objection to this charge. Appellant's complaint of it seems to be that it did not tell the jury that his failure to testify could not be taken as a circumstance against him. There is nothing in this record justifying the conclusion that the failure of the accused to testify was taken as a circumstance against him.
Appellant has three bills of exceptions, the first of which complains of argument of State's counsel in closing the case, the statement being made by him as follows:
"Defendant's counsel has argued that J. C. Wilson lost his money in a card game, but I want to call your attention to the fact that no one has testified that any card game was played."
This was objected to as being a reference to the failure of the defendant to testify. The bill of exceptions is qualified at some length by the trial judge who certifies that in his judgment the State's attorney was merely asserting that the argument of defense counsel that Wilson lost his money in a card game was without any testimony to support it, as no such testimony had been given by any witness. We do not think the argument subject to the objection made. Wilson denied in his testimony that he had played at any game with cards, and clearly the argument of defense counsel was without testimony to support it, and the argument deemed objectionable was merely a statement of a fact applicable to the whole testimony, and in our opinion was not a reference to the failure of the defendant to testify.
Bill of exceptions No. 2 complains of a number of matters contained in the charge, each of which has been examined and none of which are deemed to be erroneous.
Bill of exceptions No. 3 brings forward appellant's complaint of the refusal of his motion for new trial based on alleged misconduct of the jury. It was claimed that the jurors discussed appellant's failure to testify. We do not think the ground of objection is sustained by the testimony of the jurors who appeared before the court upon the hearing of the motion for new trial and gave testimony. The sum of such testimony is that some one of the jurors in the jury room mentioned the fact that the defendant did not testify, but all of the jurors *Page 637 testified that such fact was not discussed, and when it was mentioned the statement was at once made that this was a matter about which there should be no discussion, and should not be referred to, and attention was called to the charge of the court in this regard.
Finding no error in the record, the judgment will be affirmed.
Affirmed.
ON APPELLANT'S MOTION FOR REHEARING.