Opinion
No. 19654.
Delivered April 6, 1938. Rehearing denied (without written opinion) May 18, 1938.
1. — Theft — Evidence — Coconspirators — Third Person.
In prosecution for theft of hogs, allowing State to prove by a witness that a third person asked witness' husband on the morning after the alleged theft if he would not sell some hogs which the third person did not wish to sell in person, because others might think it strange if he sold them, was not error, notwithstanding that defendant was not present during said third person's conversation, where qualification to bill of exceptions showed that third person and defendant were coconspirators.
2. — Bill of Exceptions — Statement of Facts.
Bill of exception complaining of the overruling of defendant's request for a peremptory instruction, presented nothing for review where record contained no statement of facts.
Appeal from the District Court of Callahan County. Hon. M. S. Long, Judge.
Appeal from conviction for theft of two hogs; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
Robert P. Brown, of San Angelo, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is theft of two hogs, and the punishment assessed at two years' confinement in the State Penitentiary.
No statement of facts appears in the record, but we do find two bills of exceptions in the transcript. In the first bill appellant complains of the State being allowed to prove by Mrs. John Spurger a certain conversation wherein she testified that N. F. Freeman and her husband, John Spurger, had a conversation, not in the presence of appellant, the morning after the alleged theft wherein "Freeman told her husband that he (Freeman) had some hogs and wanted Spurger to sell them for him, that he had been selling some hogs recently, and that they might think it strange if he sold these; and that he would pay him to sell them for him."
The court qualified this bill as follows:
"The court was of the opinion that a conspiracy had been established between the parties mentioned sufficiently to bring the evidence within the rule, and it was properly admitted being acts and declarations of coconspirators before the conspiracy had ended, and being a part of the whole transaction.
"The court does not certify that it was not part of the res gestae as the hogs had not been disposed of at that time."
The bill as qualified shows no error.
Bill of exceptions No. 2 is to the overruling of appellant's request for a peremptory instruction to the jury finding him not guilty on account of the insufficiency of the evidence to support any verdict of guilty.
In the absence of a statement of facts we are unable to review this question, and we can not sustain this bill of exceptions.
Nothing further is called to our attention, and this judgment is therefore affirmed.