Opinion
No. 11842.
Delivered June 20, 1928.
1. — Theft — Confession of Defendant — Properly Admitted.
Where the defendant makes a statement to officers, criminating in its character, and which leads to the recovery of stolen property, the entire statement made by him becomes admissible.
2. — Same — Evidence — Harmless Error.
It is now the well settled rule in this state that where evidence has been admitted before the jury, without objection from the defendant, a subsequent objection to the same testimony coming from other witnesses will not avail. See McLaughlin v. State, 4 S.W.2d 54.
3. — Same — Remarks of Trial Judge — Not Erroneous.
Where the trial judge in passing upon appellant's objection to certain evidence, stated in the hearing of the jury, "that there was no evidence on the trial to show any written statement had ever been made by the witness" and said "the witness says the typewriter was there — that would indicate what was done, but I will charge the jury not to consider it." Such remarks of the court were not violative of any of the rules forbidding the judge to comment on the weight of the testimony or to make any remarks indicating his view about the case.
Appeal from the Criminal District Court of Harris County. Tried below before the Hon. Whit Boyd, Judge.
Appeal from a conviction for theft, penalty two years in the penitentiary.
The opinion states the case.
No brief filed for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Conviction for theft; punishment, two years in the penitentiary.
The facts show that in consequence of a statement made by appellant, certain stolen property was found. Appellant in that connection admitted his guilt, with another party, of the taking of said property.
There are four bills of exception. Bill No. 1 complains of the admission in evidence of a statement by appellant to the officers to the effect that he in company with one Mackey had burglarized the garage from which the stolen casings and tubes were taken. It appears from the court's qualification to this bill of exceptions that the statement objected to was a part of and contemporaneous with the statement found to be true by discovery of part of the stolen property. We think the entire conversation admissible, and that no error appears.
The second bill of exceptions complains of certain statements made by appellant on the day following his arrest, and while under arrest and at the police station. An examination of the record in this case shows that witnesses Hanna and Raney both testified to the same facts as those objected to, without objection, before the witness Trammell was put on the stand. In a number of recent cases this court has adhered to the rule that where evidence is before the jury without objection, a subsequent objection to the same testimony will be of no avail. McLaughlin v. State, 4 S.W.2d 54. Bill No. 3 as qualified presents no error.
Bill No. 4 objects to a remark made by the court in charging the jury not to consider a statement made by the prosecuting attorney. It seems that appellant objected to the remark of the prosecuting attorney concerning a written statement, which written statement is not set out, and nothing further concerning its attitude before the court appearing, the judge presiding, in reply to an objection of counsel for appellant, after saying that there was no evidence on the trial to show that any written statement had ever been made by the defendant, said: "The witness says that the typewriter was there — that would indicate what was done, but I will charge the jury not to consider it." We find nothing in the remark of the court violative of any of the rules forbidding the judge to comment on the weight of the testimony or to make any remarks indicating his view about the case.
Finding no error in the record, the judgment will be affirmed.
Affirmed.