Appellant was convicted in the District Court of Stephens County of theft of property of the value of more than fifty dollars, and his punishment fixed at five years in the penitentiary. *Page 52
A comparatively new Ford automobile of the value of more than five hundred dollars was taken from the possession of its owner on September 22, 1922, and according to the contention of appellant was purchased by him on February 27th following, the purchase being from some stranger to appellant. He testified on the trial that he so purchased said car and produced a bill of sale and witnesses thereto. The legal questions involved were submitted to the jury so fairly that the record contains no exceptions to the charge of the court. When the car was found either in the latter part of September or early part of October in the possession of appellant, he and a man named Hays were jointly occupying a shack. Behind the shack was parked the car in question and a roadster found later to belong to employees of the Texas Railroad Commission. The casings, spot light and steering wheel of the alleged stolen car were found on said roadster and parts of the roadster were found on the alleged stolen car. The numbers of both cars had been changed.
Appellant's bill of exceptions No. 1 complains that the State was allowed to show that said roadster was turned over to the Texas Railroad Commission. We are unable to perceive any injury to appellant from this testimony in view of the fact that the testimony showed apparently that the roadster in question had on it many of the parts of the alleged stolen car, and we think the State had the right to follow up the roadster so apparently found in the joint possession of the two men.
The effect of testimony showing that the numbers on the roadster had been changed, would be to show by circumstances that it also was a stolen car. There is nothing in the record, except the statement of Hays made at the time, which rebuts the fact of possession of the roadster also by appellant. It has always been held permissible to show as a guilty circumstance, that one on trial for theft, has in his possession along with the property, the fruits of the theft in question, other stolen property taken about the same time: There is a bill of exceptions complaining that the witness Casey was permitted to state that he took other cars with him to Graham on the same night that he recovered the roadster and the alleged stolen car in this case. There is no evidence showing that said other cars were stolen. While the evidence would seem to be of no relevancy, we are unable to perceive how it could have injured appellant. The same is true of the testimony of the witness Casey that he told Mr. Copeland to exchange any of the parts on the roadster and the alleged stolen car. The trial court certifies that the matter set out in bill of exceptions No. 5 as objected to, were not in fact made the subject of any objection or exception.
Finding no error in the record, the judgment will be affirmed.
Affirmed. *Page 53
ON REHEARING. November 29, 1923.