Acuff v. State

Appellant was charged with theft of eighty joints of pipe valued at six hundred dollars. His conviction resulted with punishment assessed at three years in the penitentiary.

We find in the record many bills of exception, but none were filed within such time as entitle them to consideration. The trial term of court adjourned December 30, 1922. On that day motion for new trial was overruled, and sixty days after adjournment granted in which to file bills of exception. The sixty days expired on February 28, 1923. An application for extension of time was filed March 20th, and on March 24th an order was made granting thirty days in addition to the sixty already allowed. Where an order extending the time for filing bills of exception carries the filing date beyond the duration of the trial term, or beyond the 30 days allowed by statute, an order granting further time must be made within the period of the first extension. This has been the uniform holding of this court. Griffin v. State, 59 Texas Crim Rep., 424; Sanders v. State, 60 Texas Crim. Rep., 34; Palmer v. State, 92 Tex.Crim. Rep., 245 S.W. Rep., 238; Jones v. State, (No. 7660, opinion April 18th, 1923); 95 Tex.Crim. Rep..

The pipe alleged to have been stolen was originally the property of the "New Tex Pipe Line Co." Ben G. O'Neal was appointed receiver for said company, and under an order of court sold the property of said company to one I.W. Keys, as trustee or agent, and at the direction of Keys, the possession of the property was placed in Will F. Davis, and Davis in turn placed W.E. Miller in charge of it on November 14th, 1921. The theft is alleged to have occurred on November 17th, and the ownership of the property, in the first count in the indictment (being the only one submitted), was alleged to be in Miller. Some question is raised in the evidence as to the true owner of the stolen pipe, and also as to whether Miller was in actual care, control and management thereof at the time of the theft. The first question is immaterial. The evidence authorized the finding that Miller was the party in possession, and the owner in contemplation of the theft statute. There is no question but that appellant took the pipe and was having it taken up and hauled away. He defended on the ground that he had purchased the pipe from one Scott or Scoot, and the State placed in evidence the purported bill of sale from Scott to appellant, and at his request the court instructed the jury that the state having introduced it was bound thereby unless the statements therein had been shown to be untrue by the evidence. The jury were warranted in finding upon this issue in favor of the State. The evidence being sufficient to support the judgment, it is affirmed.

Affirmed.

ON REHEARING. April 16, 1924.