Harold v. State , 165 Tex. Crim. 78 ( 1957 )

303 S.W.2d 794 (1957)

Morris HAROLD, Appellant,
v.
The STATE of Texas, Appellee.

No. 29022.

Court of Criminal Appeals of Texas.

June 19, 1957.

No attorney for appellant of record on appeal.

Leon Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for theft by bailee; the punishment, ten years.

Bob Huff, the prosecuting witness, testified that on the night in question he met the appellant and a companion by the name of Crawford, neither of whom he had known before, in the Carlos Cafe in the City of Big Spring; that after they had each consumed approximately four beers, appellant stated he knew some girls who got off work at midnight whereupon the three left the cafe and went to Crawford's room at a motel; that after they arrived at the room, at the appellant's request, he loaned appellant his 1955 Buick automobile for the purpose of going to pick up the girls; that appellant left in the automobile, returned in about fifteen minutes and stated that the girls had not gotten off from work and in about fifteen minutes appellant again left in the automobile to go pick up the girls and did not return.

Huff further testified that he next saw his automobile twenty-one days later when it was returned to him by the officers with the speedometer showing it had been driven approximately 3,000 miles and that the automobile had a value of more than $50.

The state's testimony further shows that the automobile was found abandoned near the City of Taft in San Patricio County where the appellant was arrested.

It was further shown that the tires and wheels of Huff's automobile had been placed on an automobile registered in the name of appellant's wife and that the battery had been pawned by the appellant at a filling station.

As a witness in his own behalf, appellant admitted borrowing the automobile from the prosecuting witness for the purpose of going after the girls and that he did not return it to him but testified that he had no intention of keeping the automobile permanently. Appellant testified that he was drunk on the night in question; had tried once without success to get in touch with Huff, the owner of the automobile, by telephone and admitted that he and his wife had driven the automobile to San Patricio County and that he had taken the tires, wheels and battery from the automobile.

No brief has been fled on behalf of the appellant.

The record presents no exceptions to the court's charge or formal bills of exception.

We have considered the informal bills of exception appearing in the statement of facts and find no reversible error shown.

In his motion for new trial, appellant suggests that his true name is Morris Harrell and that he was tried, indicted and convicted under the name of Morris Harold. Not having suggested his true name at the time he was called upon to plead to the indictment, appellant is in no position to urge a misnomer in the state's pleadings for the first time in his motion for new trial. Art. 495, V.A.C.C.P.

Finding the evidence sufficient to sustain the conviction, the judgment is affirmed.

Opinion approved by the Court.