On the original presentation of this case the order overruling appellant's motion for new trial and granting time in which to file bills of exception appearing to be of date April 8, we concluded the bills of exception not filed in time and declined to consider them. The matter is properly before us now, upon a certified copy of said order showing it to have been entered on April 28th. Conceding the correctness of this, the bills of exception were filed within time and are none considered.
We are in serious doubt as to whether the exceptions taken to the charge of the court point out sufficiently any part thereof regarded as objectionable, our statute requiring that the exception point out the specific part of the charge complained of; giving consideration to the exceptions, however, we observe that the charge on recent possession of the alleged stolen property by the appellant, and as to whether his explanation thereof was reasonable and sufficiently accounted for his possession, — in our opinion is not on the weight of the testimony and not open to the exceptions taken.
There is an exception to the testimony of the owner of the alleged stolen car to the fact that he paid $3,050 for it. There was no issue made that the value of the alleged stolen automobile was less than fifty dollars. It showed to be a Studebaker Sedan which had been used some months before the alleged theft. The admission of the testimony of the owner that he gave the above mentioned sum for it and that it was worth $1850 at the time it was taken, if erroneous, would *Page 535 seem to be incapable of any conclusion of injury, the jury having given appellant the lowest penalty and the evidence amply supporting the fact of his guilt. The alleged owner testified that the car would have brought $1850 in the market at the time.
With reference to the bill complaining that the appellant was asked while on the witness stand if he had not been indicted for a felony, we observe that the rules do not require that the bill of indictment be produced in the first instance. If the witness admits that he has been so indicted, this meets the object of the inquiry. If he denies it, then the State would be relegated to the production of the best evidence. The testimony was admitted evidently for the purpose of affecting the credibility of the appellant as a witness.
In his qualification to the bill of exceptions complaining of the refusal of appellant's application for a continuance it is made to appear that deputy sheriff Woods, one of the witnesses named in the application, was present and testified, and that appellant's grandmother was present but was not placed on the witness stand, and that Mr. Storm, another witness named, lived at Port Arthur, which was in the same county as that of the trial, and connected with Beaumont by hourly trolley service and that no effort was made during the trial to obtain the presence of said witness. Dad Brown, the other witness named, lived in Louisiana and no effort was made to obtain his deposition, but his testimony appeared to be only a narration of statements made by appellant's codefendant Fears, and such testimony, if offered, would not appear to be admissible. There is the further statement in this connection that appellant had been brought into open court some time prior to the trial and had then made no statement of his desire for the witness named.
The bill of exceptions complaining of the argument of the State's attorney is qualified with the statement that when the argument was made there was no exception nor objection of any kind, and that after the State's attorney had concluded his argument appellant presented a special charge which the court promptly gave, instructing the jury not to consider such argument. The argument was improper but in view of the overwhelming sufficiency of the testimony and the fact that appellant received the lowest penalty, it is manifest that the improper character of the argument would not justify this court in reversing the case on that ground.
The car of Mr. Absher was taken in Port Arthur, Jefferson County, Texas, on the 25th day of November, 1922, some time about 8 o'clock at night. The next morning appellant, accompanied by a boy named Fears, was found in possession of the car in DeRidder, Louisiana. According to the testimony of Mr. Woods, when questioned with regard to the car, appellant said that it was his and that he lived in Dallas, Texas. Appellant's testimony as given upon the trial sought *Page 536 to lay the blame for the taking upon young Fears who had pleaded guilty and gone to the Boys Training School at Gatesville. The charge of the court sufficiently stated the law of the case, and the facts amply supported the conclusion of guilt.
The motion for rehearing will be overruled.
Overruled.