Morgan v. State

• Decision Date: 30 April 1924
• Docket Number: (No. 8164.)
• Citation: 261 S.W. 1034
• Parties: MORGAN v. STATE.
• Court: Texas Court of Criminal Appeals

261 S.W. 1034

MORGAN v. STATE.

(No. 8164.)

Court of Criminal Appeals of Texas.

April 30, 1924.

Rehearing Denied May 28, 1924.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

Clifford Morgan was convicted of theft of an automobile, and he appeals. Affirmed.

Mays & Mays, of Fort Worth, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

From conviction of theft of property of the value of more than $50, in the district court of Taylor county, with punishment fixed at two years in the penitentiary, this appeal is taken.

Appellant was charged with theft of an automobile belonging to J. T. Haney. The proof showed that Mr. Haney lived in Abilone, and his minor son, who lived with him, had driven Mr. Haney's car on the night in question down to a picture show, from which place the car was taken between 8 and 9:30 p. m. Upon the trial, after the evidence was closed, a motion setting up these facts and asserting a variance between the allegation and proof was presented, asking an instructed verdict of not guilty. We think it properly refused. The exact point involved has been decided against appellant. Jackson v. State, 41 Tex. Cr. App. 85, 79 S. W. 521, 80 S. W. 631; Wright v. State, 35 Tex. Cr. R. 470, 34 S. W. 273. Frazier v. State, 18 Tex. App. 434, is cited by appellant on this point. In the opinion in that case, as illustrating the view of this court, Judge White says:

"Suppose A. loans his horse to his son or servant to ride, or he sends them on the horse on his business, temporarily to town or church, and the horse is taken. In such case the possession is in A., and it is unnecessary to allege that the horse was taken from the son or servant, because their control and possession was simply subordinate to the superior possession of A."

We know of no case holding contrary to this. Such being the law, the motion was properly refused, as was the request of appellant that the issue be specially submitted to the jury.

In this connection, and because the question is urged in appellant's brief, we observe that a special charge asked by the accused and refused will not be considered by this court unless there appear some notation upon same of the fact that its refusal is excepted to, or else there be a separate bill of exceptions complaining of the refusal of such charge. The mere asking of a special charge is not tantamount to an exception to its refusal. Exception to such refusal must in fact be taken and that fact made known to this court. The only two ways by which we can know it are by some notation made thereon by the trial judge or by a separate bill of exceptions presenting such fact. In the case before us we have considered the matter as being sufficiently presented in bill of exceptions No. 1, but have made the above observation in view of appellant's position that...