We have carefully re-examined the record in this case, in view of the urgent insistence of counsel, both by brief and argument, in support of his motion for rehearing. The case turns mainly upon the question of the sufficiency of the evidence. Briefly reviewing the facts, it appears from the record that about the 7th of July, one Jamison lost his Ford car in Waco, Texas, and that on the 15th of the same month, a Ford car of the same model and make was sold by appellant to one Stoltz, in Cameron. Upon the car of Jamison when lost, was an oversized steering-wheel, of such peculiar markings and character as to cause Ford dealers of experience, who examined it, to testify that they had never seen one like it. This same steering wheel was upon the car sold by appellant to Stoltz. An investigation of the transaction was begun, and the owner came down and looked at the Stoltz car. Appellant was approached, and the subject of his possession and acquisition of said steering wheel directly put in issue, and the question was asked appellant as to where he got it. His reply was, as testified to both by the sheriff and Stoltz, that he ordered it from Sears Roebuck. Mr. Jamison said that he had used this wheel not only upon the alleged stolen car, but upon another Ford which he had formerly owned, and that he knew the said wheel well; that there could be no doubt at all of the fact that it was his wheel, and was the one which was on the alleged stolen car. The question then resolved itself into well settled lines. Appellant was found in possession of a part of recently stolen property, and when his possession of same was called in question, he gave a false explanation thereof. It is well settled in this State that possession of recently stolen property, unexplained, or when accompanied by an explanation shown to be false, will support a conviction for theft. It would thus seem that the only question of fact left, is whether or not proof of possession of a part of stolen property, unexplained, or accompanied by a false explanation, would suffice to support a conviction for theft of the whole. We entered into a rather full discussion of this matter in our original opinion, but appellant insists that there are circumstances and facts in this case which would tend to take it out of the rule laid down in the Hill and Rose cases, cited in our original opinion, and bring it within *Page 567 the rule laid down in the case of Wafford v. State, 44 Tex. 439 [44 Tex. 439]. We have examined the Wafford case, and do not think it similar in any aspect to the instant case. In the Wafford case the accused accounted for his possession of certain alleged stolen oxen which he had slaughtered, by a claim of purchase in good faith, which he corroborated by producing a bill of sale, and further supported by proof of open and notorious appropriation and slaughter, and the production of the hides and heads, etc., of said animals. In fact, the defensive evidence in the Wafford case was of such character as to lead the Supreme Court to say: "The evidence of the defendant is just such as an innocent man might be expected to produce if he had bought the oxen as he said he did." None of these facts are true of the instant case. Appellant's only explanation of his possession of the steering wheel, of which he was in possession a week after it was stolen, was that he ordered it from Sears Roebuck, and this, according to the testimony of Mr. Jamison, was unquestionably false. Further, in the instant case, notwithstanding appellant was shown to have been in possession of two Ford cars about the same time of the alleged theft of a Ford car, and notwithstanding proof was made of the ease with which the parts of such cars might be shifted, and the identity of an individual car affected or destroyed, appellant offered no proof to show what had become of the other Ford car which he had, it appearing that he told the sheriff, when questioned about it, that he did not know to whom he had sold it. Further, in the instant case, appellant was shown to be in possession of a car on which he was using the steering wheel of Mr. Jamison, and it was made to appear that the engine number on said car had been tampered with and materially changed. So that this Court could not say of the evidence in this case, as the Supreme Court said of the evidence in the Wafford case, that the conduct of appellant is what one would expect of an innocent man under like circumstances.
We have carefully reviewed the facts and circumstances in the record, to see if there be anything which would bring this case within the rule announced in the Wafford case, but are unable to find anything. There seems no evidence affecting the appellant's acquisition of the entire Jamison car, which would rest upon a different footing from his acquisition of the steering wheel.
It is strenously argued in the motion, that appellant's explanation of his acquisition of the car sold to Stoltz was not shown to be false. Mr. Jamison did not claim as his the car sold by appellant to Stoltz, further than that the steering wheel on it was his. Whether the body of said car belonged to Mr. Jamison or not, he was unable to say, because it did not have any identification marks upon it, and the number of the engine was about nine hundred thousand above his engine number. Mr. Jamison said when his car was taken it had a cracked spoke in one of the front wheels, which he could not find in the Stoltz car. Mr. Jamison had apparently never claimed or made *Page 568 any effort to retake the Stoltz car, other than his steering wheel. So that it becomes immaterial whether the State proved the falsity of the claim of appellant as to the Stoltz car or not. The State did prove the falsity of his explanation as to the steering wheel, and that is sufficient for the purposes of this case.
Appellant insists also in said motion that it is not shown in this case that his connection with the alleged stolen car was not subsequent to its loss by theft. We do not understand that the question is raised by the evidence. Appellant did not claim that the Jamison steering wheel was on the car when he bought it from Wilson in Temple, and we find nothing in the record to suggest any acquisition by him of the steering wheel, or the car upon which the steering wheel was when it was taken from Waco, subsequent to such theft.
Appellant again urges that we were in error in upholding the action of the trial court in permitting in evidence the book called the "Ford Owner Book," and insists that our statement of the fact that the substance of what was there introduced out of said book was testified by witnesses from their independent knowledge, was not correct. In view of these questions, we have again examined the testimony of the witnesses who gave evidence as to said publication. The only object of using said book at all, seems to be to show that the serial numbers on Ford cars in 1919, and at the time of this theft, did not run anything like as high as the engine number upon the Stoltz car, and that in fact none of the numbers exceeded 3,200,000 at that time.
Examining the testimony of the witness Doering, we find that the question was asked him, if he received any cars from the Ford factory in February, 1919, and as to whether he had the invoice numbers, or the motor numbers of said cars. Witness answered that he could tell what the motor numbers were on Ford cars in June and July. This witness testified that said numbers ran about 3,200,000 to 3,100,000; nothing higher than 3,200,000 in July; and that he received the information from the invoices, and did not get it from said book. The witnesses further testified that within their own knowledge and experience, the book was reliable, and its information correct. We see no possible harm from its admittance.
The only remaining question in said motion, is that involving the argument of State's attorney. Again examining the bill of exceptions containing said matter, it appears that the State's attorney told the jury that "the presumption in this case is, if your car is stolen and you find me in the possession of it, the presumption is that I stole your car, unless I explain my possession of it. No one tells you how the defendant came into possession of the J.L. Jamison car. No one has told you how the numbers were changed on that car. No explanation shows you how the defendant came into possession of that car. But I ask you here to convict the defendant, because no explanation came from him." *Page 569
The court, in approving this bill of exceptions says that if any such remarks were made by the county attorney, he did not hear them. That no requests were presented to the court for instructions to the jury, and no objections were made, except that from time to time during the argument, counsel for appellant did present a paper to the court, on which he would contend were written objections to the remarks of the county attorney; that the county attorney contends that his intention in the argument mentioned was to call attention to the fact that at the time appellant explained to the sheriff and Mr. Stoltz where he got the steering wheel, that he made no explanation as to how he came in possession of the car. We think it permissible for the State to argue the failure of the defense to offer in evidence any explanation of appellant's possession of recently stolen property, and that the fact that in making such argument, the prosecuting attorney may have said that no explanation came from defendant, should not be held a violation of the rule forbidding comment upon his failure to testify such as would call for a reversal of the case.
Finding no error in the record, the motion for rehearing will be overruled.
Overruled.