Appellant was convicted in the District Court of McLennan County, of the theft of property of the value of more than $50, and his punishment fixed at two years confinement in the penitentiary.
One D.L. Jamison, owned and lost a 1919 model Ford car, of sufficient value to make its theft a felony. When taken, it was parked on a street in the City of Waco, and its loss occurred about July 7, 1919. On said car at the time, was an oversized steering wheel, with many odd marks, which made it easy of identification. Ford dealers who examined it, testified that they had never seen a steering wheel just like it before. Jamison had it before he purchased the car in question. There also were various other marks on said car, by which he thought he could identify other parts of the car.
Some two weeks after his loss, Mr. Jamison found his steering wheel according to his testimony, and a fender which he believed to have been on his car when it disappeared, at Cameron, some sixty miles from Waco, on a Ford car, in the possession of witness Stoltz. Mr. Jamison examined the car carefully, and said that other parts of the car did not have on them the marks of identification which he knew said parts on his car to have possessed. He also said that the *Page 562 number on the engine of said car ran about nine hundred thousand above the motor number on the engine of his own car.
Mr. Stoltz testified that he bought this car in its then condition, from appellant, some time prior to July 15, 1919; that it was a second-hand car; that appellant told him that it had not been used long, and also told him that he got it in Temple from Ben R. Wilson. The number on the engine of the car in Mr. Stoltz's possession, seemed to be 3908211, but was really 3908711; when Mr. Jamison and the sheriff came and looked at the car, witness, Stoltz, went to appellant and asked him where he got the steering wheel on the car, and he then said he had ordered it from Sears Roebuck; appellant also stated that he had another car and had sold it, but did not state to whom he had sold same, nor does such evidence appear anywhere in the record. According to the witness Stoltz's recollection, appellant stated that he bought the other car from a Mr. Law, in Waco.
Sheriff Blaylock testified that appellant told him that he had ordered the steering wheel in question from Sears Roebuck, and also that he had owned two cars, one of which he bought in Temple, and one in Waco; and witness was of opinion that appellant said he bought the one in Waco from a man named Law.
The State placed on the witness stand, the tax-collectors of Bell and Milam Counties, and from them obtained and placed in evidence, the duplicates of two receipts. The Bell County receipt was dated 7-9-19, and recited that it was in payment of the license fee for 1919, of a 1919 model Ford car, engine number 3908211, purchased from Frank Doering; owner's name, Ben R. Wilson, Temple. This tax-collector said that he could not identify the man who registered said vehicle.
The Milam County receipt was dated July 7, 1919, and recited payment of the license fee for that year on a 1919 Ford model car; engine number 3025710, purchased from J.W. Law, dealer; owner's name, C.A. Berry.
It was shown that the numbers on Ford cars run consecutively, and that in July, 1919, they would reach about 3,200,000.
Mr. Doering testified that he dealt in Ford cars in Temple in 1919, and that he kept a record of all cars sold by him; that he did not know Ben R. Wilson, and never sold him a Ford car at any time. For appellant, it was shown by a man who ran a negro pool hall for appellant, that he had business transactions with appellant on July 7, 1919, at Cameron. Two other witnesses testified that appellant was in Cameron on that day.
This is a sufficient statement of the facts.
It is here urged that the court should have given a peremptory instruction to the jury, to find appellant not guilty, at the conclusion of the evidence. We cannot agree to this contention. It has often been held by this Court, that from the recent possession of a part of alleged stolen property, theft of the whole may be inferred and *Page 563 a conviction sustained. Hill v. State, 41 Tex. 256; White v. State, 17 Texas Crim. App., 188; Gonzales v. State, 18 Texas Crim. App., 453; Rose v. State, 52 Tex.Crim. Rep..
In the case last cited, it was shown that a pocketbook was stolen, containing money and a drink check. The latter article alone was traced to the possession of appellant soon after the alleged theft. He was convicted, and the case affirmed by this Court, the following language occurring in the opinion of the Presiding Judge:
"If the drink check was traced to appellant's possession immediately after its loss, it would be very clear and cogent evidence of the fact that he took the pocket-book and all of its contents, for the check was in the pocket-book. There can be no question here that if appellant stole the drink check he stole the pocket-book and all of its contents."
The principle involved in that case is closely analogous to the one in the case at bar.
A week after the alleged car theft, appellant sold a car of the same model and make, upon which were found parts of the alleged stolen car. He said he bought the car on which were these parts, from a man named Wilson, to secure whose testimony, no effort seems to have been made, and who seems not to be known to the dealer in Ford cars at Temple; and, also not to have purchased from said dealer the Ford car mentioned in a receipt which he gave to Stoltz as having been received by appellant from said Wilson.
After selling said car, and when the direct question was put to him as to where he got the steering wheel, appellant stated that he bought the same, himself, from Sears Roebuck. This appears clearly to be false.
The court told the jury in his charge, that if appellant was not guilty of the original taking of the car, they could not find him guilty, and also told them that any subsequent connection with said car, or said steering-wheel, after their original taking, would not suffice.
The court also told the jury that if appellant purchased the steering wheel from another party, or the jury had any doubt on this question, they should acquit him.
It was proven that the engine number on the car had been changed, and a number placed there, greater than any made by Mr. Ford up to that time.
The witness Jamison testified, that within his knowledge and experience, the parts of a Ford car were easily detached, and could be changed without much trouble, and he was positive in his identification of the steering-wheel as being his and attached to his car when same was stolen. Appellant complains of the admission of this testimony, but we think it competent and material, to show the positive identification of said witness, and to show the case with which the parts of such cars as his, could be shifted. Schnaubert v. State, 28 Tex.Crim. Rep., 12 S.W. Rep., 732, is cited, but in that case, *Page 564 the only criminative evidence was that a brand on an animal had been changed so that it resembled appellant's brand. This Court properly held it insufficient. We are unable to apply that case as authority here.
The witness Jamison, on re-direct examination, stated that the number of the engine of the car found in Stoltz's possession, was about a million above the number on engines then put out by Mr. Ford. Appellant objected for various reasons, none of which seems to us applicable. The case was one of circumstantial evidence. Jamison's car was a Ford — 1919 model. He said the car he found was the same make and model, and apparently about the same age as his. The mark of identification on the engine — its number — was material. If it had been changed, that fact was material. If, when found it had a number a million higher than any then put out by the maker, that fact was material, as showing that the number had been changed. If witness knew such fact, it was proper for him to so state.
The witnesses Doering and Cruger, each of whom had dealt in Ford cars for years, testified to the fact that the numbers appear on Ford engines serially. The testimony of each of these witnesses showed substantially that all the engines of said make are numbered consecutively. Doering was permitted to identify a book, in which appeared the number of Ford engines manufactured during the five or six years next preceding, and to say by his own use, and experience in his own business for a number of years, and actual comparison with cars handled by him and his invoices, that he knew said book to be authentic and reliable. This witness also testified from his own knowledge and purchases, to the number on Ford engines in February, 1919, and also in June and July, 1919 the figures given being corroborative of the testimony of said witnesses. We think the testimony of Cruger and Doering admissible, in view of the affirmative testimony of the reliability and authenticity of said book, and of the fact that the engine numbers as occurring in said book were substantially the same as testified to by said witness, and that there was no error in allowing the testimony as to the engine numbers published in said book for February and July, 1919. Aldenhoven v. State, 42 Texas Crim. App., 6; Wright v. State, 44 S.W. Rep., 514, and others are cited, but do not support the position. An examination of these authorities shows that nothing was given as to the accuracy, correctness, or reliability of any of the publications referred to in said opinions, and nothing was shown making the contents of said books in anywise admissible. If said evidence as to the contents of the book was objectionable, same would be harmless, in view of the fact that the same testimony was given by the witnesses who knew the facts of their own knowledge.
The remarks of the court, complained of, had no bearing on the weight of the evidence referred to, but were addressed solely to the *Page 565 admissibility of the book in question. The court also qualifies the bill by saying that no objection was made to said remarks at the time same were made, and we think no error appears.
Objection was made to the question asked of appellant's witness Posey, as shown by appellant's bill of exception No. 11. By reference to said bill, it is disclosed that on cross-examination, said witness was asked by the State: "Do you know whether or not Charles Berry had somebody to come to Waco and steal that car for him?" To this the witness answered, "I don't know sir." We can see no transgression of the rule of cross-examination. This witness worked for appellant, conducting a pool-hall and drink stand for him, and had testified very strongly to art alibi. The evidence in the case strongly tended to support the theory that the car bought by Stoltz was stolen, as well as that lost by Jamison. Some one must have been the guilty party. Cross-examination directed at finding who the guilty party might be, seems admissible.
It was also objected that said witness was asked if he did not know that appellant had raised the number of that car something nearly a million. The court, in approving the bill containing both of said objections, states that the only objection made to the question relative to the engine number being raised, was, "It is assuming a state of facts not proven or intimated."
It was practically undisputed that the engine number on the Stoltz car was nearly a million above those of Ford engines then existing. Some one must have raised it. There was no such assumption of fact as to make the objection tenable. Nor do we think any error appears in the bill, complaining of the remarks of the county attorney in his argument to the jury. No requested charge was presented, asking that the jury be instructed not to consider such remarks, and we are unable to agree with any contention that the statement shown in said bill impinged the statute forbidding comment on appellant's failure to testify.
Appellant seeks a new trial, upon the ground of newly discovered evidence, the same consisting of the supposed testimony of the deputy tax-collector of Milam County, to the effect that he issued to appellant a receipt for the registration of a car on the 7th day of July, 1919. No reasonable excuse appears why this testimony could not have been obtained on the trial. If material and true, the facts were well within the knowledge of appellant. We do not think such facts of sufficient materiality to justify the inference that they might produce a different result. Cameron, the county seat of Milam County, is shown to be about sixty miles from Waco, where the alleged theft was committed. It is no stretch of judicial knowledge for us to say that it would be easy for one to register an automobile in Cameron on the 7th, and during the same day reach Waco in time to commit a theft. *Page 566
Finding no reversible error in the record, the judgment of the trial court will be affirmed.
Affirmed.
ON REHEARING. June 25, 1920.