In this case the conviction is founded mainly upon the confession of the defendant, which confession was proved over his objection that the same was made while he was in the custody of an officer, and was not such a confession as is admissible under the provisions of our Code. (Code Crim. Proc., arts. 749, 750.) It was stated by the witness who detailed the confession that it was *279made by the defendant on the same day that defendant was arrested, but whether made before or after such arrest the witness could not state. Ho other evidence was adduced as to the circumstances under which the confession was made.
. It is contended by counsel for appellant that before the confession could be competent evidence, it devolved upon the prosecution to prove that it was made under circumstances which rendered it admissible; that is, that it was voluntarily and freely made, without compulsion or persuasion, and at a time when the defendant was not under arrest. There is much plausibility in this position, but we think the rule of the law is to the contrary. Hr. Wharton says: “If the confession is on its face voluntary, the burden is on the defendant to show it incompetent.” (Whart. Or. Ev., § 689.) This is the rule laid down also by Hr. Roscoe. (Roscoe’s Ev., 7th ed., p. 54. See, also, 1 G-reenl. Ev., § 219, note 4.) We think the burden rested upon the defendant to show that at the time he made the confession he was under arrest, and not having shown that such was the fact, the court did not err in admitting proof of the confession. The rule that the burden of proof rests upon the State to prove the guilt of the defendant has no "application to this question.
Appellant’s proposition that where ownership is alleged in two persons the want of consent of both to the taking must be alleged and proven is unquestionably correct. (McIntosh v. The State, 18 Texas Ct. App., 285.) We think this requirement was sufficiently fulfilled in this case. Ownership of the property was alleged to be in the firm of Hallory & Allen, composed of S. T. Hallory and Jacob Allen. It was alleged that the property was taken without the consent .of the owner. It would have been correct to have written owners, but, as it is, the word owner is critically correct when applied to the firm, and embraces each member of the firm. As to proof of want of consent of both owners, Hallory testified that he did not consent to the taking of the property, and ■ he also testified to circumstances which satisfactorily proved that Allen, the other member of the firm, did not consent to the taking. This circumstantial evidence as to the want of consent of Allen was not objected to by the defendant when offered, and no motion was made by him to exclude it. Having been admitted without objection, the defendant cannot be heard to complain that there was better evidence in existence and within reach of the prosecution by which Allen’s want of consent should have been proved, to wit, Allen himself. We have in several cases held that circumstantial evidence to prove a fact could not be resorted to where it appeared *280that there was direct evidence in existence, and no sufficient reason was shown for its non-production. (Miller v. The State, 18 Texas Ct. App., 38, and cases there cited.) In all of these cases, however, the objection to the introduction of the inferior evidence was made at the time the same was offered, and its admission was excepted to. It does not appear, however, in the reports of the cases, that such objection was made and exception taken, and hence the opinions have been misunderstood as holding, as stated in appellant’s brief, that “ circumstantial evidence will not support a verdict, where it appears that direct evidence was attainable.” We have never held that a verdict based upon circumstantial evidence, which evidence was admitted without objection on the part of the defendant, would not support a verdict.
The court erroneously charged the jury that if they found that the property was the property of S. T. Mallory and Jacob Allen, or either of them, etc., they should convict. No exception to this charge was taken at the time of the trial. We regard the error complained of as immaterial. It could not have prejudiced the rights of the defendant, because the proof was conclusive that the property was the joint property of Mallory and Allen.
There are two complaints in the record, both filed on the same day — one charging the defendant with the theft of a vest, and the other charging him with the theft of pants. The former has the file number 746 upon it, and the latter has the file number 747 upon it. The information upon which the trial and conviction were had charges the defendant with the theft of pants, and bears the file number 746, corresponding with the complaint which charges the theft of a vest. This discrepancy in the file numbers of these papers was not called to the attention of the court until after conviction, when it was sought to be availed of by a motion in arrest of judgment. Such objection cannot be availed of by motion in arrest of judgment. It was a mere defect of form, and it is only for a substantial defect in the indictment or information that a motion in arrest of judgment can be maintained. (Code Grim. Proc., art. 787.)
We find no error in the record for which the judgment should be reversed, and it is affirmed.
Affirmed.
[Opinion delivered November 7, 1885.]