
    O’NEAL v. STATE.
    (No. 10332.)
    (Court of Criminal Appeals of Texas.
    Feb. 16, 1927.)
    1. Indictment and information <§=>1 10(18) — Indictment following statute, charging defénd-ant with entering house in nighttime by force with intent to fraudulently take property therefrom, held sufficient (Pen. Code 1925, arts. 1389, 1410).
    Indictment for burglary, averring that defendant entered house occupied and controlled by another in the nighttime by force, with intent to fraudulently take other’s property therefrom, following Pen. Code 1925, arts. 1389 and 1410, defining burglary and theft, held not defective for failure to aver that defendant fraudulently entered house.
    2. Burglary <§=>41 (I) — Conviction for burglary of defendant entering another’s garage held sustained by evidence.
    In prosecution for burglary by entering into garage with intent to take another’s property, evidence held sufficient to sustain verdict.
    3. Criminal law <§=>814(3) — Requested instruction that, if alleged burglar conceived intent to steal after entry, he should be acquitted, held not based on evidence.
    In prosecution for burglary, requested instruction that, if defendant conceived intent to steal after entry, he should be acquitted, held properly refused, where issue sought to be submitted was not raised by evidence; no testimony being introduced in defendant’s behalf.
    4. Witnesses <§=>71 — On application for suspended sentence, that judge testified as-to defendant’s reputation held not ground for reversal (Code Cr. Proc. 1925, art. 717).
    In prosecution for burglary, in which defendant filed application for suspended sentence, trial judge could testify as to defendant’s bad reputation in another county where defendant had resided in rebutting evidence of defendant’s witnesses; such testimony on part of judge not being ground for reversal, in view of Code Or. Proc. '1925, art. 717, providing trial judge is competent witness for either state or accused, though he may not be required to testify, on his declaration that there is no fact within his knowledge important in the case.
    5. Witnesses <§=>79(1) — Propriety of trial judge’s becoming witness must be left to his discretion (Code Cr. Proc. 1925, art. 717).
    Propriety of trial judge’s becoming witness in given case must be left largely to his discretion; trial judge being competent witness under Code Or. Proc. 1925, art. 717.
    Appeal from District Court, Knox County; J. H. Milam, Judge.
    J. D. O’Neal was convicted of burglary, and he appeals.
    Affirmed.
    Dickson, Newton & Dickson, of Seymour, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Dyles, Asst. State’s Atty., of Groesbeck, for the State.
   HAWKINS, J.

Conviction is for burglary; punishment being two years in the penitentiary

Bill of exception No. 3 brings forward appellant’s complaint at the court’s refusal to arrest the judgment, which was sought upon the ground that the indictment was fatally defective in that it did not aver that appellant “fraudulently” entered the house. We perceive no vice in the indictment. It follows approved forms as well as the statute defining bui’glary and theft. Articles 13S9 and 1410, P. C., 1925. It avers that appellant entered a house occupied and controlled by Lester Brown in the nighttime by “force,” and with the intent to “fraudulently” take therefrom property belonging to Brown, and contains the further averments which would constitute theft.

Bills 1 and 2 raise in different ways appellant’s contention that the evidence is insufficient to support the verdict and judgment. Brown returned to his home late in . the night, about 11 o’clock, drove his automobile in the garage, locked .the car, closed and fastened the doors to the garage, and went into his residence. A short time thereafter he saw two parties crossing the street, going in the direction of his garage, and soon heard talking apparently in the garage. Upon investigation, he discovered that the door of his garage was standing open about 18 inches. He returned to the house, secured a gún, and approached within about 20 feet of the garage door.' He could hear talking inside, and could hear a noise, but could not tell what was going on. He ordered the parties to come out. Some one from the inside requested him not to shoot, and appellant and his brother emerged from the garage. They were taken in charge by Brown and turned over to the officers. Upon returning to the garage, appellant made an examination and discovered that his car tools, which had been under the back seat when he left the car, were then upon the floor of the car between the two seats. Nothing was missed from the ear or the garage. Appellant’s contention that the facts do not show entry of the garage with intent to commit theft is wholly without merit. If Brown’s evidence is true, the tools had been moved by appellant or the' party with him, and it is not likely they would have brought them or other articles they intended to steal out of the garage when they had been detected and the ‘owner was standing there with a drawn gun. We quote the text and supporting authorities from Branch’s Ann. Tex. P. C. § 2344:

“The intent with which the defendant entered the house is a question of fact for the jury, to bra gathered from all the circumstances of the case. When it is alleged that the burglarious entry -was made with intent to commit theft, and the jury have found that such entry was made with such intent, and such finding has been approved by the trial court, the judgment of conviction will ordinarily be sustained if there is nothing in the testimony to indicate that such entry was made with any other intent. Franco v. State, 42 Tex. 276; Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; Mullens v. State, 35 Tex. Cr. R. 149; 32 S. W. 691; Matthews v. State [Tex. Cr. App.] 38 S. W. 172; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Moore v. State, 52 Tex. Cr. R. 364, 107 S. W. 355; Williams v. State [65 Tex. Cr. R. 82] 143 S. W. 634; Black v. State [73 Tex. Cr. R. 475] 165 S. W. 571.”

Appellant requested the court to instruct the jury that, if appellant conceived the intent to steal after he entered the house, he should be acquitted. The refusal of this charge is made the basis of complaint. Appellant did not testify, and introduced no testimony in his own behalf, explaining his presence in the garage or the purpose of his entry. We find nothing in the facts to raise the issue thus sought to be submitted. Appellant had no business in the garage, and there is nothing to indicate that he entered for one purpose, and, after having entered, conceived then for the first time the intent to steal: The court committed no error in refusing the requested instruction.

Appellant filed an application for suspended sentence. The trial was had in Knox county, where the offense was alleged to have been committed. Appellant lived in this county at the time, and had resided there for a number of years, but formerly had resided in Baylor county. Appellant called two witnesses, who testified that appellant’s reputation in Baylor county was good. In rebuttal the district attorney testified that he was acquainted with appellant’s reputation in Baylor county, and that it was bad. He also called to the witness stand the trial liudge, who testified to the same effect. Bills of exceptions 6 and 7 bring forward complaint because they became witnesses. The bills raise more a question of the propriety of the officers, and especially that of the trial judge, testifying rather than any legal question. Article 717, O. C. P. 1925, expressly states that:

“The trial judge is a competent witness for either the state or the accused, and may be sworn by the clerk of his court and examined, but he is not required to testify if he declares that there is no fact within his knowledge important in the case.”

Appellant was attempting to establish the fact as bearing upon his application for suspended sentence that his reputation in Baylor county was good. The application was not filed until the day of trial, and it may be the state was without witnesses upon the point save the district attorney himself and the trial judge. However that might be, the learned judge could not very well excuse himself on the ground that he knew no fact bearing upon the case, for, when called, he testified that he did’know that appellant’s reputation in Baylor county was bad. The propriety of the trial judge becoming a witness must be left largely to his good judgment and discretion in a given case. The records coming before this court for review reflect that only in rare instances does the trial judge permit himself to become a witness.

The only remaining bill is that complaining of the overruling of motion for new trial. It calls for no discussion. The motion was based upon matters presented in other bills which have already been disposed of.

The-judgment is affirmed. 
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