ben.E. New v. State

KRUEGER, Judge. The appellant was convicted of the *123 offense of theft of property over the value of fifty dollars, and his punishment was assessed at confinement in the state penitentiary for a term of eight years. This case was before this court on two former occasions. The last opinion delivered by the court will be found reported in 83 S. W. (2d) 668. The substance of the testimony as there set out is very similar to that on this appeal. Therefore we do not deem it necessary to here restate the substance of the same. Appellant’s first complaint is that the court erred in overruling his motion for a severance and to place Grady New on trial first. He alleged that it was his opinion that the testimony against Grady New, who was indicted separately for a like offense and which grew out of the same transaction, was Insufficient to warrant Grady’s conviction; that in case of an acquittal, he desired to use Grady as a witness. The court overruled the motion upon the assurance of the district attorney that in case the appellant desired to use Grady as a witness, he would be available. After the State and defendant had rested the court dismissed the cases then pending against Grady and so advised appellant’s counsel that Grady New was now available to him, if he desired to use him as a witness, but appellant declined at that time to avail himself of the opportunity of calling Grady as a witness. It occurs to us that under the facts as disclosed by this record no reversible error was committed. Appellant’s next contention is that the court erred in overruling his motion to quash the indictment and the various counts thereof. We have examined the indictment and think that it is sufficient to charge the offense of which appellant was convicted. Appellant in due time urged six objections to the court’s main charge. The first is that the court failed to instruct the jury that if the defendant at the time he acquired the property from Jes Rasmussen intended to deliver to Rasmussen the consideration agreed upon, but was prevented therefrom by any matter transpiring thereafter, to acquit him. Such an issue was not raised by any of the testimony adduced upon the trial. At least we have been unable to find it in the record. Appellant’s third objection is that the court failed to instruct the jury that before they could find the defendant guilty of theft by false pretext the jury must find from the evidence beyond a reasonable doubt that at the time the defendant acquired the possession of said certificates of deposit, he then *124 had the intent to appropriate said certificates of deposit to his own use and benefit and not to deliver the stock certificates to Jes Rasmussen, etc. We find from an inspection of the court’s charge in paragraph two thereof that the court did instruct the jury that if they believed from the evidence beyond a reasonable doubt that defendant came into lawful possession of the assignment described in the indictment, that such possession was obtained by false pretense and with the intent at the time to deprive the said Rasmussen of the value thereof and to appropriate said property to the use and benefit of himself, etc., then you will find the defendant guilty; and also instructed the jury that if they did not so find or had a reasonable doubt thereof, to acquit him. The court’s failure to instruct the jury that if appellant then and there had the present intent to deliver said stock certificates, to acquit him was not error. If the appellant had offered any testimony as to his good intention or if the State had introduced testimony from which such an inference might have been drawn, then the court no doubt would have given an instruction upon that theory of the case. The record discloses that the appellant did not deliver any certificates of stock to Rasmussen and had not done so at the time of the trial which occurred more than two years after the commission of the alleged offense. As a general rule the intentions of a person are ascertained from his acts and conduct at, before, and subsequent to the transaction in question. Applying this rule to the facts proven we do not think that the objection is well taken. All other objections have been examined and deemed to be without merit. There are sixteen bills of exception in the record, all of which were filed too late, and therefore, cannot be considered by this court. It will be noticed that the motion for a new trial in this case was overruled on November 7, 1935. No order was made extending the time within which bills of exception might be filed. Sentence was passed on the appellant on the same day the motion for a new trial was overruled. The caption shows that the term of court extended from October, 1935, until February, 1936, that is, court opened on October 21, 1935, and on February 5, 1936, at the date of the transcript it was yet in session. It clearly shows that the bills of exception were filed too late to be considered. See subd. 5 of Art. 760, C. C. P., 1925; Metaxes v. State, 75 S. W. (2d) 888. Finding no reversible error in the record, the judgment of the trial court is affirmed. Affirmed. *125 The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.