
    BROWN v. STATE.
    (No. 3196.)
    (Court of Criminal Appeals of Texas.
    June 26, 1914.
    Rehearing Denied Oct. 14, 1914.)
    1. Criminal Law (§ 448) — Evidence—Opinion op Witness.
    A witness, who stated the distance from her home to the store burglarized and the time elapsing after accused had left her at her home until shots were fired, could not give her opinion as to whether accused could have reached the store after leaving her, but that question was for the jury.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1035-1039, 1041-1043, 1045, 1048-1051; Dec. Dig. § 448.]
    2. Cbiminai, Law (§ 885) — Instructions— Punishment — Recommendation op Suspension op Sentence.
    Where the court gave the jury a form of verdict in case they found accused guilty and desired to recommend a suspension of sentence and a form in case they did not desire to so recommend, the action of the jury in adopting the latter form was a specific finding that they did not recommend suspension of sentence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2108; Dec. Dig. § 885.]
    Appeal from District Court, Lee County; Ed. R. Sinks, Judge.
    Charles Brown was convicted of burglary, and he appeals.
    Affirmed.
    Chas. Brown, pro se. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
       For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was convicted of burglary, and his punishment assessed at two years’ confinement in the penitentiary.

Sheriff Scarborough and J. M. Clark positively identify appellant as the person who entered Clark’s store and attempted to open his safe. His testimony, and the testimony of Mrs. Schroeder and Miss Schroeder would tend to prove an alibi and render it impossible for him to have been the person who committed the burglary.

While Miss Laura Schroeder was testifying, appellant propounded to her the following question:

“Could it have been possible for the defendant to have been the person in Clark’s store, and could defendant have possibly reached Clark’s back door in the space of time intervening between the time he left the room where you were sitting and the time the shots were fired by the sheriff?”

The state objected on the ground that this called for the opinion of the witness, and the court sustained the objection. When the witness had stated the distance from her home to Clark’s store and the length of time elapsing after he had left the room where she was sitting until the shots were fired, the jury was as capable of judging whether or not sufficient time had elapsed for him to have gone to the store and entered as was the witness, and there was no error in the ruling of the court. Of course, appellant’s counsel in his argument so insisted, but the jury finds against such contention, and the opinion of the young lady was not admissible.

The court instructed the jury as to the form of their verdict in case they found appellant guilty and desired to recommend a suspension of sentence, and the form in case they did not desire to so recommend. They adopted the latter form, and this was a specific finding that they did not recommend a suspension of sentence.

The judgment is affirmed.  