Appellant moves for a rehearing on two grounds, the first being that the charge on accomplices does not go far enough. If the charge went no further than appears from the bill of exceptions there might be some ground for the complaint, but an examination of the charge shows that immediately following that part of same quoted and referred to in the bill of exceptions, the court further told the jury that before they could convict the defendant at all they must believe from all the evidence in the case, beyond a reasonable doubt, that he was guilty of the offense charged in the indictment. This being in the charge renders unavailing appellant's complaint. The cases cited in the motion complain of charges in which the statement referred to is not made.
The other complaint is of the refusal of the court to submit the issue of misdemeanor theft. We have carefully examined the testimony in this case. Same shows that between the closing hours at night and the opening next morning of the place of business of one Hays a large number of automobile casings and tubes were taken therefrom. Eight casings and fifteen tubes were recovered and were identified and their value stated to be more than two hundred dollars. There is not a word of testimony in the record suggesting that any of this property was taken at a time different from that at which all of same was taken. It was altogether when lost and altogether when found. Appellant did not deny the taking. He took the officers to the place where that which was recovered was found. It is a well settled rule that a charge which is not supported by any testimony is not called for. Many cases have been decided by us on somewhat similar facts. We do not believe the court erred in declining to submit the law of misdemeanor theft.
The motion for rehearing is overruled.
Overruled. *Page 39