On Further, Motion for Rehearing.
At a former day of this term the judgment herein was affirmed, and defendant has filed a motion for rehearing, insisting that the opinion in this case is in conflict with the case of McConico v. State, 133 S. W. 1047. In that case it was held that, as the evidence did not show that the property taken was without the consent of the owner, it was fatal, and the case was reversed. If the evidence in this case did not show that the property was taken without the consent of the owner, we would not hesitate to reverse it, but on page 4 of the transcript the owner testifies: “On the morning of September 30th I went down to the wagon yard before daylight and my wagon sheet was gone. I looked around there thoroughly and continued my search for several hours, but could not find it. This wagon sheet was taken from my possession without my consent in the county of Scurry and state of Texas.”
[3] Appellant also insists that in this case the court should have charged on circumstantial evidence. The defendant asked no special instructions, did not complain in his motion for a new trial that the court did not charge on circumstantial evidence, and it is too late to raise this question on a motion for a rehearing in a misdemeanor case in this court. See authorities cited in original opinion.
The motion for rehearing is overruled.