(232 8.W.) ment assessed at three years' confinement in the penitentiary. William Tucker, who was the station agent for the Texas & Pacific Railroad at Mingus, in Palo Pinto county, left his automobile near the station on the night of June 9, 1919, and discovered his loss about 11:45 o'clock the same night. Immediately upon discovering that the car was gone, he sent various messages to the surrounding towns, and especially one to Millsap, in Parker county, about 30 miles east of Mingus, describing the car with minuteness. The information that the car was gone, and the description of it, came to W. J. Lewis, an officer at Millsap, came to W. J. Lewis, an officer at Millsap, and he immediately began a watch for the car. About 1:30 o'clock in the morning the appellant drove up in front of the garage in Millsap, and Lewis, after examining the car and satisfying himself that it was the car from Mingus, arrested him. The owner was notified, and reached Millsap a little after daylight, identified the car beyond question, and the same was turned over to him by the officer. [1] Appellant filed a motion to quash the indictment. There is no merit in any of the objections he urged to it. He complains that in one place in the indictment the pleader uses the words "the same" William Tucker, instead of the word "said"; and in another place the word which should be "said" is written "same." The two words complained of could be entirely eliminated from the indictment, and still a complete offense be charged; and permitting them to remain in no wise renders the indictment bad. While the officer, W. J. Lewis, was testifying, he was asked upon cross-examination to tell what, if any statement, the appellant made to him at the time he arrested him with the car. Objection was made by counsel for the state that it was self-serving, and that the statement was not made by appellant on first being arrested. When this question arose the trial judge proceeded with the utmost care, and we desire here to commend the practice adopted by him in this instance. He had the jury withdrawn, and the entire matter developed in order that he might rule intelligently upon it. During this examination the witness Lewis testified that he told defendant he would have to detain him and the car both, and that appellant replied: "All right, I think you are mistaken in the man." When he asked his permission to look at the car, he said: "All right. Help yourself." Nothing else was said by defendant at that time. The car was rolled into the garage, and the officer had the owner of the car at Mingus communicated with, advising that the car had been found, and for him to come over and identify and get it. About an hour after appellant's arrest, after he had made the statement heretofore recited, the appellant got up from where he had been sitting and went over to where the officer was, squatted down beside him, and then made the following statement: "I would not say the car is not a stolen car, but I know I did not steal it. I realize what I am into, all right, without anybody telling me, but I did not steal the car. The car may have been stolen, for what I know. I was taking it to Fort Worth for another party." Upon being asked by the officer how he came in possession of the car, he replied: "Well, I had got a man to take me to Fort Worth that night; I had to get to Fort Worth early next morning, and got a man to take me in a car, and we met this man in this car, and he and the man I was with got to talking to each other, and said something about taking me to Fort Worth, and he says: 'Well, if that is all, why not let him take my car, and we will go back. I do not care to go for two or three days, and just all that it will cost him is to drive my car through to a garage in Fort Worth.' 999 Upon being asked who the men were, ap pellant replied that he did not know. It was the statement last above mentioned, which occurred about an hour after his arrest, that was excluded upon objection by the county attorney, and it is to the exclusion of that testimony that appellant reserved his bill of exceptions. The court admitted the statement made at the time of the arrest, viz., that appellant told the officer that he thought he had the wrong man, but declined to admit the subsequent statement, and appended to the bill of exceptions his following reasons: "The constable arrested the defendant, and defendant at the time he would have to detook him and the car into his custody, telling tain him and the car. The defendant replied, 'All right, but I think you are mistaken in the man.' This was all that was said by defendant at the time he was arrested. The car was rolled into the garage. The defendant sat down on a seat inside the garage and the constable sat outside near the side door. Nothing more was said for about an hour, when the defendant got up and came to where the constable was, sat down near him, and voluntarily made the statement and explanation, the exclusion of which by the court is complained of in this bill. I thought the defendant's possession was challenged when he was arrested and the car taken from him and he advised that the car was charged to have been stolen, and that his explanation, to be admissible, should have been made then. The voluntary statement made by him an hour afterwards, after the lapse of ample time to fabricate an explanation, I did not deem to be res gestæ, or to come within the rule admitting statements explaining the possession of recently stolen property made when the possession was first challenged, but thought said testimony hearsay and self-serving.” Counsel for appellant in his brief cites a number of authorities, to which we will re fer. In Shackelford v. State, 43 Tex. 141, [ under the circumstances as shown above. In the court simply holds the explanation ad- Andrew's Case, 25 Tex. App. 343, 8 S. W. 328, missible, and gives no circumstances under the accused made a statement as to how he which it was made, except that it appears to came in possession immediately upon his have been, "After the accused was overtaken right being challenged. Some of these explaby his pursuers"-but how long after is nations were offered by the state and some not shown. Perry v. State, 41 Tex. 486, sim- by the defendant. There was some contraply announces thatdiction in the testimony as to what the accused did say upon this first explanation, a contradiction arising even among the witnesses for the state with reference to it. The accused then offered to prove an explanation which he had made on a day subsequent to the first, and the court held that, in this case, in view of the contradiction, he ought to have been permitted to do so. The Gilleland Case, 24 Tex. App. 524, 7 S. W. 241, does not discuss the question we have under advisement at all. "Appellant, when found in possession of the stolen property, at once explained the nature and purpose of his possession, and gave the names of the persons who claimed to own it, and by whom he had been hired." In Windham v. State, 19 Tex. App. 422, it is simply recited that when defendant's right to the stolen property was first challenged, the explanation was made. Miller v. State, 18 Tex. App. 34, only announces the general rule as to explanations, and throws no light on the subject whatever. In Castellow v. State, 15 Tex. App. 552, it appears that a man by the name of Murphy and a man by the name of Newhaus had each lost a cow. The defendant learned that a witness, Godez, had been making some inquiry about the Newhaus cow, and sent for the witness and told him the cow he had necked to an ox had been left in his pasture by a drover because she was lame, and requested Godez to tell Newhaus, if the cow was his, to come and prove it and take her; that he, the defendant, had no claim to her. About 12 days after this Murphy found this cow necked to the ox, and claimed the cow as his, and the defendant made a statement to Murphy and the sheriff at that time with reference to the possession of the cow, and this statement with reference to the Murphy claim, offered by the defendant, was excluded. The court held it should have been admitted although he had previously made an explanation with reference to the claim of Newhaus to the cow. The court holds that what the accused in this case may have said explanatory of the fact that the stolen cow was necked to his ox was admissible in his behalf. It will be seen that this case throws no light on the question now under consideration, because both of the explanations there were made instantly upon his right of possession being challenged as to the alleged Newhaus cow, and later, as to the claim of Murphy to the cow. In Wright's Case, 10 Tex. App. 476, the appellant, Wright, and one Walker, and others, were jointly charged with the theft of a horse, and about 10 minutes after the arrest Walker made a statement which was offered in evidence, and the same was excluded. The opinion in that case stated that 10 minutes perhaps would not be too long a lapse or interval of time to place it beyond the bounds of res gesta; that a defendant's statements explanatory of his possession, when first arrested, are admissible; and held that, although Wright was upon trial, Walker's statement was admissible It will be seen from the foregoing cases cited by appellant in his brief that they do not aid the court in determining the question now under consideration. Mr. Wharton, in Criminal Evidence, vol. 2, § 761, lays down the general rule to be: "What the accused said, on the discovery of the goods with him, is admissible in his favor if made instantaneously and without opportunity of concoction, as part of the res gestæ." Encyclopedia of Evidence, vol. 8, p. 111, states the rule substantially as does Mr. Wharton, but in a little different language, viz.: "The explanation is equally admissible whethsion, or after he has parted with possession, er made when the accused is in actual possesso long as it is made when his right to the property was first questioned. But it is not admissible where it appears that he had had opportunity to concoct a self-serving story." In Taylor v. State, 15 Tex. App. 359, Judge Hurt, in his usual clear and forceful manner, stated the rule as follows: "Under the ancient authorities a party was not permitted to introduce his explanation of less he was in possession of the property at his possession of property recently stolen, unthe time the explanation was made. This rule has been relaxed so as to permit him to give in evidence his explanation, if made at the time his possession was challenged, or when charged with the theft. *** The rule, however, has never been extended to such length as will permit a party to introduce his explanations made at any and all times, under any and all circumstances. To be admissible the party must be in possession of the property, or the explanation must be made when arrested for the theft, or when charged, or informed that he is suspected of the theft. And another rule must be borne in mind, which is that the explanation must be made when the party is first directly or circumstantially called upon to explain." In that case the accused was seeking to introduce what he had said with reference to the alleged stolen property at a time when (232 S.W.) he was in possession of it, but before he was arrested or even charged with, or suspected of, the theft, and the explanation was excluded as being self-serving. doubt that the defendant is guilty, you will so find; otherwise, you will acquit him." Appellant vigorously assails this charge, [2] The reason for the rule is founded on and presented a special charge in lieu therehuman experience, that one innocently in pos- of: He asserts that where the court says, "if session of recently stolen property will im- you believe that his explanation accounted for mediately and instantly declare his con- his possession in a manner consistent with nection with it, when his right to the posses- his innocence, and that his explanation is sion is challenged; it is an involuntary as reasonable and probably true, you will acquit sertion of innocence; the res gestæ of pos- the defendant," the court should have said, session when the right is challenged. But "consistent with his innocence as charged in his declarations before arrest, or before his the indictment, then you will consider such right of possession is questioned, are regard- explanation as true, and acquit the defended as self-serving, and rather smack of a ant." We cannot agree with appellant's critpreparatory defense, because of conscious icism. If the court had incorporated in his wrongful possession; possession; likewise, his state- main charge the clause "consistent with his ments made subsequent to arrest, or to the innocence, as charged in the indictment," time his right of possession is challenged, doubtless it would have been met with a comwhere time has elapsed for him to reflect and plaint that it was confusing, and meaningfabricate an explanation, are excluded; they less, because there was no charge in the inpass from the domain of res gestæ of the par- dictment consistent with his innocence. We ticular transaction, to wit, a challenge of his think appellant was not only not injured, but possessory right, and again become obnox- benefited, by the omission of such clause. ious as self-serving and hearsay. We do not It is true the court did not use the words believe the court committed error in exclud- "you will consider such explanation as true," ing the explanation made something like an but what he did say was tantamount to the hour after the appellant's arrest. It appears same thing; that is, if they believed the exto us such explanation falls within the ban planation, etc., to acquit. Appellant comof excluding an explanation after time and plains because the court later in the charge opportunity for reflection and fabrication of uses the expression, "but if you believe the an excuse or explanation which would suit explanation to be untrue," etc., and insists the exigencies of the occasion. In view of that the court should have said, "but the the record we do not understand why the state has shown the falsity thereof," etc. state objected to this testimony, and later on, There would have been more force in appelwithout objection, permitted defendant to re- lant's contention if the state had introduced call the owner of the car, Tucker, who testi- the explanation, but here it was introduced fied that two or three hours later, when he by appellant. The case of Gusemano v. arrived, the appellant made practically the State, 69 Tex. Cr. R. 557, 155 S. W. 217, citsame explanation to him. There is no sub-ed by appellant, seems to turn on that very stantial difference between the explanation fact. Even where the explanation comes intestified to by Tucker and the one offered through Lewis. [3] The court charged upon the explanation of possession of recently stolen property as follows: "If you believe from the evidence that the automobile in question was stolen, and that soon thereafter the defendant was in possession of said automobile, and that when his possession thereof was questioned he made an explanation of how he came by the same, and if you believe that his explanation accounted for his possession in a manner consistent with his innocence, and that his explanation is reasonable and probably true, you will acquit the defendant. If, on the other hand, you believe said explanation to be unreasonable and does not account for defendant's possession in a manner consistent with his innocence, or if you believe said explanation accounts for defendant's possession of said automobile in a manner consistent with his innocence, but if you believe the explanation to be untrue, then you will take the possession of defendant, together with his explanation, in connection with all the other facts and circumstances, if any, in evidence, and if you believe beyond a reasonable to the case through the state's evidence, we person who had requested him to drive it to, at the time said automobile was taken, if it Fort Worth, or if they had a reasonable was taken, you will in either such event acquit doubt upon that issue, to acquit? But having the defendant and say by your verdict 'Not charged on explanation, it was not necessary guilty.'" to give the special charge requested by appellant embracing what is suggested above. It is rarely necessary to give both, and we do not believe it was required in this case. And in addition gave the following requested charge: "You are charged, as a part of the law of this case, that all persons are principals who are guilty of acting together in the commission of an offense. The defendant in this case stands charged with the offense of theft as a principal. Now, if you believe from the evimobile described in the indictment in this case dence beyond a reasonable doubt that the autowas stolen from the owner, Wm. Tucker, still, before you can convict the defendant, you must further find and believe from the evidence beyond a reasonable doubt that the defendant himself took said automobile in the first instance, or acted together with some other person or persons in the original taking of said automobile from the owner of same, and, if the state has not done this, you must return a verdict of 'Not guilty."'" [4-7] Appellant urges that as as he was charged as a principal only, the trial court did not sufficiently instruct on that issue in the main charge, and requested seven special charges; all of them presenting some phase of the law of principals. The court gave one of the special charges, but refused the others. (a) One special charge explained to the jury the law of receiving and concealing stolen property, and told the jury appellant could not be convicted of that offense under the indictment; (b) another defined an "accomplice," and advised the jury that appellant could not be convicted as an accomplice under the indictment; (c) another was a charge on principals, and informed the jury that they could not convict appellant unless he himself took the car from the owner, or acted together with others in the original taking; (d) another was a repetition of the charge on principals, and concluded by telling the jury that if appellant was not a principal in the original taking, he could not be convicted under the indictment even though he came into the possession of the car sub-to sequently, knowing that it was stolen; (e) another informed the jury that the gist of the offense of theft was the original taking, and if appellant was not connected with the original taking, no subsequent connection with the car would make him guilty as charged; (f) another was to the same effect in different language. All of the refused charges embraced correct propositions of law, and unless the court sufficiently covered them in the charges he did give, their refusal was error. In his main charge, the court told the jury: "If you believe and find from the evidence that the automobile in question was stolen from the possession of the witness Wm. Tucker at Mingus, Tex., yet if you further believe that the same was taken by some other person, and not by the defendant, or that the defendant was not present, but was at another and different place at the time said automobile was taken, and did not participate in the taking thereof, or if from the evidence you have reasonable doubt as to whether said automobile was taken by some other person or not, or as to whether or not the defendant was present the court, in our opinion, perfectly safeguardAn examination of the charges given by ed appellant's rights at every point touched by the refused charges, and we find no error by the refused charges, and we find no error on the part of the court in this respect. To have given the special charges would only have been a repetition. consider is one complaining of improper [8, 9] The only bill of exceptions remaining argument by the assistant county attorney, believed such a defense as this defendant has who said, "Other juries have heretofore disReference to what other juries had, or had interposed." The argument was improper. not, done should not be indulged in. But the court gave the jury written instructions telling them such argument was improper, and that they should not consider it. In view of the charge given, we do not believe such error was committed as will require a reversal. The judgment of the trial court is affirmed. On Motion for Rehearing. LATTIMORE, J. Appellant has filed a motion for rehearing which we have carefully considered, but same seems to be merely a restatement of the various assignments which have heretofore been before this court and fully considered by us. No new propositions are advanced, and we find nothing in any argument used causing us to doubt the correctness of the original opinion. The motion for rehearing will be overruled. (89 Tex. Cr. R. 408), (232 S.W.) JOINER v. STATE. (No. 6274.) (Court of Criminal Appeals of Texas. June 1, 1921. State's Rehearing Denied June 24, 1921.) Nioma Joiner was convicted of receiving and concealing stolen property, and appeals. Reversed and remanded. W. C. Wofford, of Taylor, for appellant. Dan Moody, Co. Atty., of Taylor, and R. 1. Bail 72-Filing of new appeal bond cured H. Hamilton, Asst. Atty. Gen., for the State. defective bond. A motion to dismiss an appeal in a criminal case because of a defective appeal bond will be overruled, where it appears that after being notified of the condition of the appeal bond a new bond was made by accused in accordance with statute and was properly certified to and filed with the clerk of the appellate court. 2. Witnesses 48(1)-Escaped convict should not be permitted to testify over objection. In a criminal prosecution, a witness for the state, who admitted that he was an escaped convict and had never been pardoned, was erroneously permitted to testify over defendant's objection. 3. Criminal law 922(7), 1038(3), 1056(1)— Failure to charge as to accomplice testimony not reversible error nor ground for new trial in absence of exceptions or request. Failure to charge as to accomplice testimony is not reversible error, unless there is an exception to the instructions given for such failure, or there is a refusal of a special charge submitting such issue, and the matter cannot be raised upon motion for new trial or appeal for the first time. 4. Criminal law 338 (4, 5)-Conduct of third parties out of presence of accused inadmissible. It is not proper in a criminal prosecution to permit the admission of evidence of acts of persons other than the accused not in the presence or hearing of the accused. 5. Criminal law 338 (4, 5)-Evidence of other thefts with which defendant was not connected held inadmissible. In a prosecution for receiving and concealing stolen property, it was improper to permit the alleged thief to testify over objection that he had broken into other stores than the one from which the goods in question were taken, where accused was not connected with such other thefts and did not contend that the property in question was not stolen by the alleged thief. 6. Receiving stolen goods 9(1)-Whether person buying expensive dress cheaply knew It was stolen held for jury. LATTIMORE, J. Appellant was convicted in the county court of Williamson county of receiving and concealing stolen property, and her punishment fixed at one day in the county jail and a fine of $10. [1] A motion to dismiss the appeal because of a defective appeal bond will be overruled, inasmuch as it appears that after being notified of the condition of said appeal bond, a new bond was made by appellant in accordance with our statute, which was properly certified to and filed with the clerk of this court, and same will be incorporated in and made a part of the record in this case. [2] Appellant was charged with receiving from one Parrish a certain dress of the value of $15 which had theretofore been acquired by one Holts in such manner as that its acquisition was theft. Holts or Holt was introduced as a witness for the state, and testified that he had been brought to the county of the forum from the county jail in Bastrop by the officers. On cross-examination by appellant he admitted himself to be an escaped convict, stating that he had never been pardoned. Appellant thereupon objected to his testimony, which objection was overruled, and he was permitted to further testify. The objection should have been sustained. Corzine v. State, 226 S. W. 686. [3] Holts and Parrish were both shown to have been criminally connected with the alleged stolen property in such way as to make theirs fall within the rule of accomplice testimony. Failure to charge as to such testimony is not reversible error unless there be an exception to the instructions given for such failure, or there be refusal of a special charge submitting such issue, neither of which appears in the instant case, and the matter cannot be raised upon motion for new trial, or in this court for the first time. [4] Witness Parrish testified that said Holts left various suit cases filled with stolen goods at the home of one Ricks, who knew said goods were stolen. We do not think In a prosecution for receiving and concealing stolen goods, court did not err in re-the particular objection to this evidence fusing a peremptory instruction, where the proof showed that for $11 accused bought a new silk dress worth $42.50, which had never been worn or used and was brought to her house by a negro in a handbag, he having been to her house before with other articles, and when the dress was found by the officers in her home it was taken from an ice chest. which was made by appellant was sufficient, but in view of another trial we observe that the knowledge of Ricks of the stolen character of said goods does not appear material or binding upon this appellant; and it would appear to be res inter alios acta as to what was done between Holt and Ricks away from the presence and hearing of appellant, and Appeal from Williamson County Court; F. such testimony should not be admitted over D. Love, Judge. a proper objection. 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