Preston v. State , 94 Tex. Crim. 645 ( 1923 )

The offense is theft; punishment fixed at confinement in the penitentiary for a period of two years.

The property stolen was eighty-one dollars in money. Tom Bunch was named as the owner. Bunch and Swearengen were partners in a mercantile establishment. In their place of business was a safe from which the appellant took the money. He was caught in the act by Bunch, who was alone in the store. Swearengen was in the city but not in the store. At the time of the theft, the store and the property therein was under the care, control and management of Bunch. Such was his testimony. In the statute it is said:

"Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them." (Code of Crim. Proc., Art. 457.)

Upon these facts there was no variance growing out of the joint ownership. Lockett v. State, 59 Tex.Crim. Rep.; Branch's Ann. Tex. P.C. Sec. 2434 and cases listed; also Palmer v. State, 92 Tex.Crim. Rep., 245 S.W. Rep. 239.

The record is without bills of exception. Some special charges were refused but it does not appear that they were presented to the trial judge in the time required by statute, nor that exception was taken to their refusal. Therefore they cannot be considered. Barrios v. State, 83 Tex.Crim. Rep., 204 S.W. Rep. 326; Nichols v. State, 91 Tex.Crim. Rep., 238 S.W. Rep. 232; Eliphas Linder, No. 6558, recently decided.

Finding no error, the judgment is affirmed.

[Rehearing denied, June 1923. — Reporter.] Affirmed.