Conviction is for theft of two bales of cotton from the possession of M. A. Richards, punishment assessed at two years in the penitentiary.
An opinion of affirmance was delivered June 12, 1935, which fails to take note of three bills of exception found in the record, the same having been overlooked by reason of the fact that in indexing the transcript the clerk did not index them as bills of exception, but under others names. This is called to our attention in the motion for rehearing filed by appellant. The original opinion will, therefore, be withdrawn and the following substituted therefor. *Page 194
Richards had two bales of lint cotton in a vacant lot near his home in the town of Paducah, Texas. Attached thereto were certain identification numbers. On July 31st, 1934 these two bales of cotton were stolen. There was evidence showing that on the following morning these two bales of cotton were found in the possession of appellant, loaded on a trailer which was attached to a car registered in appellant's name. Appellant did not testify as a witness in his own behalf. His mother, wife, and brother testified that he was at home on the night of the alleged theft and the following day. The wife testified that a few days before the alleged theft appellant had loaned his automobile to one Pierce.
Appellant's motion for new trial was overruled on the 14th day of December. No order was made granting additional time for the filing of statement of facts and bills of exception. The statement of facts was filed within ninety days and may be considered under the provisions of sub-division 5 of Art. 760, C. C. P. An attempt was made to extend the time for filing bills of exception. It is doubtful if the bills should be considered at all, but we have considered them and find they present no error.
The first bill relates to the refusal of a continuance based upon the absence of the witness Barton. No process had ever been issued for this witness, but appellant asserts in his application that he promised to be present at the trial and would have been present, but was in the hospital where he had undergone an operation. The qualification to the bill shows that appellant's bond had been forfeited and that he had neglected to make any preparations for the trial, and that when he was arrested under the alias capias he was, in the language of the qualification, "* * * running loose in utter disregard of said criminal case, of the setting thereof, and of his bond, * * *"
The second bill of exception relates to a request of appellant to strike from the record the testimony of the witness Wilson. The qualification to the bill shows that the court was correct in declining to grant appellant's request.
The only other bill of exception in the record relates to the claimed insufficiency of the evidence. The State's case showed appellant in the unexplained possession of recently stolen property, and was sufficient upon which the jury might predicate their verdict. We see no ground upon which the claim of insufficiency of the evidence can be sustained.
The judgment is affirmed.
Affirmed. *Page 195
ON MOTION FOR REHEARING.