Conviction in District Court of Knox County of theft of property over the value of fifty dollars, punishment fixed at two years in the penitentiary.
Furniture and other personal property was taken from a house on Pitch Fork ranch, said house being unoccupied at the time. O. A. Lambert, foreman of the ranch, testified that he had charge of the house and of the property in it. He testified as to the value of the property lost, fixing same at something over one hundred dollars, and stated that he had gotten back the property taken and that it was in the house from which it was taken. The identification of the property taken from said ranch with property sold by appellant and one Wilcoxson to Roy Scott seems sufficient to justify the conclusion of the jury that it was the same. Scott said he paid appellants $70.00 for the property which he purchased in Knox County. Said property was taken in Dickens County and carried by the parties into Knox County, where it was sold and where the prosecution was had.
There are seven bills of exception. Bills 1, 2, 3 and 4 complain of testimony relative to the fact that the property stolen was at the time of the trial back in the possession of Lambert and that the furniture had been turned over by Scott, the purchaser from appellant, to a Mr. Rice; also testimony that the furniture turned over to Rice had been turned over to Luther Edwards; also that Edwards testified that the furniture which had been turned over to him by Rice had been carried back to Pitch Fork ranch by him. The objection to this was that it was acts of these parties in the absence of the accused and after the commission of the *Page 296 offense, etc. We have often said that it is not a good objection to testimony otherwise pertinent, to say that it transpired out of the presence of the accused. It may be noted that much of the testimony relative to any case would likely relate to matters occurring out of the presence of accused. The owner who testifies to the loss of his property, its location, its value, etc., testified to facts occurring out of the presence of the accused, as he also does who testifies to the finding of his property and its recovery at a given place, or to the finding of evidences of crime, etc., etc. Where it becomes necessary for the purpose of identifying property to show that it passed from the hands of one to another, or from that one to still another, such facts are not to be held inadmissible simply because they were out of the presence and hearing of the accused. We might observe that neither one of the four bills just referred to manifests the truth of the matters stated as grounds of objection. This court has uniformly held that a bill of exceptions which merely presents the objections made without also affirmatively showing that the facts thus stated as objections, are true, will not suffice to call for consideration.
Bill of exceptions No. 5 was taken to the refusal of a special charge to the effect that unless the jury believed the defendant was the original taker of the property in Dickens County, he could not be convicted. We do not so understand the law. If appellant associates himself with the criminal enterprise, viz.: the taking and appropriation of the property at any time before the offense had been completely consummated, he would be criminally responsible. Smith v. State, 21 Tex.Crim. App. 96.
Bill of exceptions No. 6 sought to have the jury told that before they could convict they must believe that Lambert had the actual care, control and management of the property. We find nothing in the evidence questioning Lambert's control of said property, or that same was in his care, control and management. The main charge of the court seems sufficient on the point. This is true of the special charge, refusal of which is complained of in bill of exceptions No. 7. Scott testified that when appellant sold him the property in question he told him that they had brought it down from their store, and that he could furnish him any other property that he desired. The proposition of conscious assertion of ownership seems fully supported by the testimony.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 297
ON MOTION FOR REHEARING.