Castelberry v. State

• Decision Date: 23 February 1921
• Docket Number: (No. 6084.)
• Citation: 228 S.W. 216
• Parties: CASTELBERRY v. STATE.
• Court: Texas Court of Criminal Appeals

228 S.W. 216

CASTELBERRY v. STATE.

(No. 6084.)

Court of Criminal Appeals of Texas.

February 23, 1921.

Appeal from District Court, Harrison County; P. O. Beard, Judge.

Orrie Castelberry was convicted of the theft of over $50 in money, and he appeals. Affirmed.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

HAWKINS, J.

The appellant was convicted in Harrison county for the alleged offense of theft of over $50 in money, and his punishment assessed at confinement in the penitentiary for two years.

The record is before this court with only the statement of facts and the transcript, no brief having been filed, and counsel for appellant cites us to no authorities in support of the propositions presented in the bills of exceptions contained in the transcript. However, we have examined the same, and find that his bills of exception Nos. 1 and 2 complain of testimony admitted by the trial judge, over his objection, touching appellant's connection with and possession of a check which the evidence shows was taken at the same time that the money is alleged to have been stolen. Appellant in the indictment is charged only with the theft of money, and not also with the theft of the check, but it has been so frequently held by this court that it is permissible for the state to show the possession by the accused of property taken at the same time as that for which he is being prosecuted that it is unnecessary to quote authorities with reference to it, and we find no merit in appellant's first two bills of exceptions.

Bills of exceptions Nos. 4, 5, 6, and 7 present no error; they were either to requested charges which were upon the weight of the evidence, or had been covered in the court's general charge.

Appellant's bill of exceptions No. 3 is as follows:

"Be it remembered that on the trial of the above entitled and numbered cause the court, in its written charge delivered to the jury among other instructions, gave the following in paragraph 8, to wit: `To show the intent with which the defendant acted with respect to the property for the theft of which he is now on trial'—and the defendant at the time of the said trial excepted to said portion of said charge, upon the ground that it was upon the weight of the evidence, and an assumption of guilt of the defendant if the state proved the theft of other property, and the defendant tenders this as his bill of exceptions, and requests the court to approve the same and order filed as a part of the record in this cause."

An inspection of the court's charge develops that counsel is only complaining of a portion of the paragraph in which the language set out in his bill occurs, but, when we examine the record in this case as it is presented to us, we find this bill cannot be considered because no objections in...