The clerk of the court below failed to incorporate in the record filed in this court, any statement of facts, but same has now been filed here and shows on its face to have been approved and filed in time in the court below, and it has been considered. From same it appears that in appellant's car when he was arrested on the night of the alleged theft of the chickens, was found a pair of gloves. In developing its case in chief the State made no mention of gloves but proved only the loss of said chickens, discovery of their loss, the pursuit of a car by the owner of the chickens in company with an officer, the arrest of appellant in a car that same night and the finding in said car the stolen chickens. Appellant took the stand and swore that the chickens were bought by him at or near Huston from a man whom he did not know. In its rebuttal the State showed by witnesses that they found in appellant's car when he was arrested a pair of gloves which were identified by Dr. Tadlock, the owner of the chickens, and by officer Patton as the gloves of Dr. Tadlock which he said were on a work bench in his garage near the chicken house when he last saw them before his chickens were taken. It thus appears that proof of the loss and finding of the gloves was properly a part of the development of the res gestae of the instant case. The State did not seek to prosecute or punish for the theft of the gloves, but this in nowise affected its right to prove same as part of the transaction. Manifestly no error was committed in allowing proof of the loss of the gloves at the time the chickens were taken, and of the further fact that same were found in appellant's possession coincident with finding him in possession of said chickens.
We are not led to change our views on appellant's claim of surprise at the testimony relative to the gloves. Evans v. State, 13 Texas Crim, App., 225, lays down the rule that one can not evade the consequences of his own neglect by the claim of surprise. The gloves were found in possession of appellant when arrested for this theft. They were then indentified as the property of Dr. Tadlock. Reasonable diligence would expect evidence relating to the gloves as part of this case. The fact that appellant did not notify his attorney of the facts pertaining to the gloves, or did not expect *Page 354 any such evidence against him because the gloves were not named in the indictment, would not seem any sufficient reason or excuse for failure to prepare to meet this part of the State's case.
Nor can appellant claim that the evidence presented in the shape of an affidavit attached to the motion for new trial, was in fact newly discovered, as it is plain that same was known to him at and prior to the time of such trial, or could have been known by the exercise of reasonable diligence.
Appellant's motion for rehearing will be overruled.
Overruled.