The motion for rehearing is so general in its terms that it does not demand a review of any matters therein referred to save two questions elaborated in the written argument in connection with the motion.
Appellant adroitly and forcibly argues that the conviction can not be sustained because the evidence is insufficient to establish that the post cards described in the indictment were ever stolen from their alleged owner. The indictment alleges the theft of said cards only. In determining this question all the evidence may be looked to, not only that relating to the post cards but also the evidence showing the presence in appellant's store of other identified articles belonging to Mr. Bozeman which had been missed from the latter's store. After having again carefully reviewed the entire statement of facts no doubt as to the sufficiency of the evidence arises.
The instructions to the jury authorized a conviction if they believed beyond a reasonable doubt that appellant took "corporeal personal property" of the value of five dollars. It is urged here for the first time that such instruction was fundamentally erroneous because the evidence indicated that appellant took property other than the *Page 77 post cards which was the only property described in the indictment, and that the instructions permitted a conviction for the taking of property for the theft of which appellant was not charged. It may be admitted that the charge was erroneous. It should have made a conviction depend on a finding by the jury that appellant took the property described in the indictment. If the charge had been objected to as required by Art. 658 Cow. C. P. the trial court doubtless would have corrected it. There being evidence upon which the jury could predicate a finding that the post cards had been stolen precludes a reversal in view of Article 666 Cow. C. P.
The motion for rehearing is overruled.
Overruled.