
    VILLAREAL v. STATE.
    (No. 8080.)
    (Court of Criminal Appeals of Texas.
    Feb. 11, 1925.
    Rehearing Denied Oct. 7, 1925.)
    I.Criminal law <®=»673(I) — Confession containing exculpatory matters properly admitted, where court charged state was bound' by exculpatory matters therein.
    In prosecution for burglary, admission in evidence of confession containing exculpatory matters was proper, where court charged that state would be bound by exculpatory matters unless falsity was shown by other evidence.
    2. Burglary (&wkey;45 — Law of principals held properly submitted to jury.
    Where there was evidence showing that accused was with other parties the night of the burglary, and accused admitted that" such parties had possession of the stolen articles and gave him some, submission of the case to the jury on the law of principals was proper.
    3. Burglary <&wkey;46(I) — Refusal to instruct that defendant could not be convicted of receiving stolen property proper, where no likelihood that such would happen.
    Refusal to charge, in prosecution for burglary, that defendant could not be convicted of receiving stolen property on confession statement, but that, to convict, jury must believe him guilty of burglary, was not error, where there was no likelihood of jury convicting him of receiving stolen property.
    4. Burglary &wkey;>46(l) — instructions held sufficient as pointing out necessary elements of conviction.
    In prosecution for burglary, charge that, in order to convict, jury must not only believe appellant was present and knew the unlawful intent, but also that he aided by acts or encouraged by words, was sufficient presentation of the law on such point.
    5. Criminal law <®=o726 — After appeal by counsel for defense not to take defendant away from family, state’s attorney may properly call attention to defendant’s misconduct with other women as shown in evidence.
    Where, in prosecution for burglary, defendant’s wife and children were at trial, and defendant’s counsel appealed to jury not to take defendant away from them, state’s attorney could properly refer to defendant’s misconduct with other women as shown by testimony.
    6. Criminal law <&wkey;>l 160 — Overruling motion for new trial cannot be considered by Supreme Court, in absence of issues of newly discovered evidence or misconduct.
    Motion for new trial in prosecution for burglary cannot be considered by Supreme Court, where no issue of misconduct or newly discovered evidence or any other calling for presentation of evidence other than that heard on main trial was made.
    <@=»For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
    Appeal from District Court, Hays County; M. C. Jeffrey, Judge.
    Fidel Villareal was convicted of burglary, and he appeals.
    Affirmed.
    Joe H. IT. Graham, of San Antonio, for a,p-' pellant.
    Tom Garrard, State’s Atty., and Grover C. Morris; Asst. State’s Atty., both of Austin, for the State. :
   LATTIMORE, J.

Appellant was convicted in the district court of Hays county of the offense of burglary, and his punishment fixed at two years in the penitentiary.

The store burglarized was located at Uhi land, a little town some 12 miles from San Marcos, tbe county seat of Hays county. That a burglary was committed and a quantity of clothing, shoes, waists, and dress goods material were taken is not disputed. A clerk in said store testified that he saw a man in the store the afternoon before the night of the burglary just like appellant. It was in testimony that, when the burglary was discovered in the morning after same was committed, there were tracks of two men going side by side out to a point where a car had stopped. This car was tracked to where it entered the highway going in the direction a1 San Marcos. The party doing the tracking' said he found another track beside the two mentioned which looked as though it w* walking along on the side of the .road down which ■ the car. went. The imprint of this track was not quite as plain as the others. A woman named Garcia testified that appellant came to her house with a, sack containing three georgette waists, one pair oí shoes, one suit of men’s clothes, and, two pieces of goods. She said appellant stated that he wanted to leave the clothes in the house. This witness also stated that the day before appellant brought these articles to her house she saw him and her brother Sebastian Machado in an old Ford car. Officers testified that after the burglary they found in Ma-chado’s house a part of the goods that were taken out of the burglarized store, and which were afterwards identified by the proprietor. These goods were found in Machado’s house a few days after the bdrglary. The officers also found, at the home of the Garcia woman, several ladies’ waists and some dress goods and one suit of clothes. A written statement made by appellant after he was arrested and duly warned, which was signed by him in the presence of witnesses, was introduced in evidence by'the state. In it was an admission that on the night in question he went in a1' Ford car with Machado and the husband of the Garcia woman up to a point at the foot of a hill not far from Uhland. He claimed that at this point he declined to go any farther, and that Garcia and Machado got out of the car and left. He said that all three had started to Uhland to take part in a gambling game there. He further claimed that after the men left him he lay down in the car and went to sleep, and that they came later, waked him, and that they had a sack which they claimed to contain things they had won in the gambling mentioned. He said they gave him some of the articles, and that he took them to San Marcos and gave them to a woman at the house of one Gonzales.

We perceive no error in admitting in evidence the written .statement of appellant. The fact that there were exculpatory matters stated therein, and that the whole confession was put in evidence by the state,' would not render it inadmissible. The court below gave a special charge telling the jury that the state would be bound by the exculpatory part of said confession, unless its falsity was shown by other evidence.

There is a bill complaining of the refusal of a peremptory charge, which we think presents no error. Nor do we perceive any error shown in the exceptions taken to the court’s charge.

The evidence showing that appellam was with the other parties on the night of the alleged burglary, and that he turned up the next day with a part of the stolen property in his possession, would seem to justify the submission of the case to the jury on the law of principals. Several-of the exceptions taken to tile charge evidently resulted in changes therein. The court gave a special charge requested by the appellant on circumstantial evidence.

Bill of exceptions No. 4 is leveled at the charge for failure to submit an affirmative presentation of defendant’s theory of the case, and also to the court’s refusal of a special charge referring to the written statement made by appellant, and -in which the jury were told that, though they might believe from said statement that appellant received and disposed of all or of part of the property taken from the burglarized premises, they could not convict -him upon this testimony for receiving and concealing stolen property, that they must believe him guilty p-f burglary as defined. We think there was no likelihood of the jury convicting appellant of receiving and concealing stolen property, and, unless this was true, there was no need of giving the special charge.

Bill of exceptions No. 5 sets out the written 'statement of appellant offered in evidence by the state, and complains of the refusal of a special charge to the effect that the mere presence of appellant at the time and place of the burglary would not make him a principal, nor would mere knowledge, and that he could not be convicted unless the jury believed beyond a reasonable doubt that he did sórne act in furtherance of the common design. In the written charge given by the court below, the jury were told that, in order to convict, they must not only believe appellant was present and knew the unlawful intent, but also that he aided by acts or encouraged by words, etc. We think this a sufficient presentation of the law on this point.

The sixth bill shows that appellant had his wife and children present at the trial, and that his counsel appealed to the jury not to take him away from them by their verdict. In replying to this, it is set out that state’s attorney told the jury that, if appellant thought so much of his wife and children, he ought not to have been running around with ánother woman and acting toward her as was demonstrated by the testimony. We do •not think this objectionable argument. It was shown by the testimony that appellant came from San Antonio- to San Marcos in a ear with another man and two women; that appellant Rad a sister living in San Marcos; that he did not take the women to her house, but took them to the house of a man named Gonzales; also, upon his return to San Marcos from the Uhland community on the night of the alleged burglary, he went to1 the house of Gonzales, where said two women were and spent the night; also that he gave to one of the women part of the goods which apparently came out of the alleged burglarized store. We think such conduct justified the reply made by -the state’s attorney to the argument of appellant.

There is a bill of exceptions to the refusal of the motion for new trial, but, as no issue of misconduct, or newly discovered evidence, or any other calling for the presentation of evidence, other than that, heard on the main trial, was made, the bill of exceptions' to the overruling of said motion presents nothing for our consideration.

Rinding no error in the record, the judgment will be affirmed.

-On Motion for Rehearing.

HAWKINS, J.

We have again examined into the legal propositions presented in appellant’s motion for rehearing, and the able oral argument of his counsel in support there-of, and have also reviewed the evidence, having in mind the points thus urged.

It is insisted that our Original opinion was erroneous in the disposition made of the questions raised by bills of exception 4 and 5, relating to the charge given and special charges refused. The point urged by appellant is illustrated by the opinions in Clark v. State, 60 Tex. Cr. R. 173, 131 S. W. 556; Steed v. State, 43 Tex. Cr. R. 567, 67 S. W. 328; Davis v. State, 55 Tex. Cr. R. 495, 117 S. W. 159; Armstead v. State, 48 Tex. Cr. R. 304, 87 S. W. 824; Silvas v. State, 71 Tex. Cr. R. 213, 159 S. W. 223; La Fell v. State, 69 Tex. Cr. R. 307, 153 S. W. 884. An examination of these authorities reveals that all of them are cases depending upon circumstantial evidence, where the testimony raised the issue whether the accused was present when •the offense was committed. In each case the trial court told the jury, in substance, that, if the offense was actually committed during the existence and in the execution of a common design and intent of all, then all would be guilty as principals, whether or not in fact all were actually bodily present when the offense was committed. Having given this charge, the court then refused to instruct the jury that, accused being indicted as a principal only, he could not be convicted under said indictment, although the jury might find him to have been an accomplice or accessory in the crime, or the receiver of stolen property, as the case might be. The propriety of giving such charge under the circumstances shown in the respective cases was questioned, and the refusal of the special charges was held erroneous.

The present case is one in which the state relied for conviction upon circumstantial evidence, and also where the presence of ap-peUant.at the commission of the. offense was questioned, but the charge on principals in this case was entirely different from that given in the cases referred to. The court here told the jury that all parties were principals who acted together in the commission of an offense, and that when an offense was actually committed by one person, but another was present and knowing the unlawful intent, aided by acts qr encouraged by words or gestures, the one engaged in the commission of the unlawful act, such person so aiding or encouraging would also be a principal offender. In the next paragraph of the charge the jury was told, if they entertained a reasonable doubt whether appellant broke and entered the house, to acquit him. We think the charge as given clearly informed the jury that, before appellant could be convicted, he must have been present and engaged in breaking and entering the house. It follows that in our opinion the refusal of the special requested charges does not call for a reversal of the. judgment.

After again reviewing the facts,-we think the jury was warranted in concluding that the exculpatory statements contained in appellant’s confession were not true.

The motion is overruled.  