The offense is theft; the punishment, confinement in jail for twelve months.
Bill of exception No. 6 shows that appellant's motion for an instructed verdict on the ground that the State had failed to prove the want of consent of the owner of the stolen property was overruled. This motion was made and overruled after both sides had closed. It appears further from the record that during the argument of counsel for the appellant the court permitted the State to recall the owner and prove by him that he did not give the appellant or anyone else his consent to take his property. In view of the fact that this proof was before the jury, we would not be warranted in holding that the evidence is insufficient.
Bill of exception No. 5 is concerned with appellant's objection to the action of the court in permitting the State to make said proof as to the owner's want of consent, the specific objection being that it came after appellant's counsel had begun his argument. The rule is well settled that "it is within the judicial discretion of the court whether testimony shall be permitted during the argument." Branch's Ann. P. C. of Texas, Sec. 378. It is obvious that the reception of said testimony was necessary to a due administration of justice.
The judgment is affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.