
    SKIRLOCK v. STATE.
    (No. 9042.)
    (Court of Criminal Appeals of Texas.
    May 13, 1925.
    Rehearing Granted June 24, 1925.)
    1. Criminal Iaw&wkey;>l 120(8) — Bill of exceptions, failing to show reason why evidence was inadmissible, will not be considered. '
    Bill of exceptions, failing to show any reason why evidence was not admissible, will not be considered.
    2. Criminal law &wkey;>726 — District attorney’s argument that he would not try accomplice until, after all these cases were disposed of held proper.
    District attorney’s argument that he would not try. accomplice until all these other cases have been disposed of, made in reply to defendant’s argument that accomplice would never be tried, was proper, where it was manifest from record that district attorney referred to cases pending against accomplice and another, for offenses growing out of same transaction for which accused was being tried.
    3. Criminal law t&wkey;722(3) — Argument that accused led expedition of crime held supported by record.
    District attorney’s argument that case showed that defendant led an expedition of crime is proper where state’s evidence, if true, supported argument, and instruction to disregard such argument was overgenerous to defendant.
    4. Criminal law <&wkey;>lll9(4) — Objection to argument that defendant was responsible for not having statement before jury will not be considered, where bill does not show what statement contained.
    Objection to district attorney’s argument that defendant was responsible for not having written statement before jury will not be considered, where bill of exception does not show what statement contained.
    5. Criminal law <&wkey;5l I (2) — Evidence in prosecution for burglary held sufficient to corroborate accomplice.
    In a prosecution for burglary, evidence that stolen goods were found in house jointly occupied by defendant and accomplice, and that defendant got a gun and tried to escape arrest, constitutes some testimony tending to connect defendant with the burglary, and sufficient to corroborate accomplice.
    On Motion for Rehearing.
    6. Criminal law <&wkey;l 120(8) — Bill of exceptions held to.state as a fact that accused’s answer to arresting officer’s question was made while under arrest.
    In prosecution for burglary, bill of exceptions stating that stolen goods were found, and immediately thereafter defendant was arrested, which then set out defendant’s answer to arresting officer’s question, states as a fact that answer was made while defendant was under arrest.
    7. Criminal law <&wkey;>l 169(12) — Evidence of accused’s statement, made after arrest to deputy sheriff, held prejudicial.
    In prosecution for burglary, admission of deputy sheriff’s testimony that defendant stated after arrest that it was his bed in the room where stolen goods were found held prejudicial.
    Commissioners’ Decision;
    Appeal from District Court, Jones County; Bruce W. Bryant, Judge.
    0. A. Skirlock was convicted of burglary, and he appeals.
    Reversed and remanded on rehearing.
    Lon A. Brooks, of Anson, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   BERRY, J.

Appellant was convicted in the district court of Jones county for the offense of burglary and ■ his punishment assessed at 3 years’ confinement in the penitentiary.

The state’s testimony shows that appellant, acting with Yiola May King and A. 0. Williams, broke into and entered a house occupied by J. W. Pritchett and stole divers articles of value therefrom.

Bill of exceptions No. 2 complains that the state asked Viola May King, while testifying for the state, the following question; “What did you have in the car?” and also complains of her answer, “We had the stuff we had gotten from Mr. Farrow’s house.” This bill shows nothing more about what was meant or understood by witness with reference to the stuff gotten from Farrow’s house. If there was any reason why the statement was not admissible, the bill fails to show it. Robbins v. State (Tex. Cr. App.) 272 S. W. 175, recently decided and not yet [officially] reported, and the authorities there cited.

Bills Nos. 3 and 4 raise the same question in a different form as is raised by bill No. 2, and we make the same observations with reference thereto.

Bill No. 5 complains because the court permitted the deputy sheriff to say' appellant told him it was his bed in the room wKere some of the stolen goods were found. This hill does not state as a fact that appellant was under arrest when the statement was made, and as presented it shows no error.

Bill No. 7 complains of the statement of the district attorney to the effect “I shall riot try Viola May King until all these cases have been tried and disposed of.” The bill on its face shows that this argument was in reply to the argument of counsel for appellant in which he said that in his opinion Viola May King would never be tried. This bill fails to show that there was no" testimony to the effect that other cases were pending against these parties, and the argument seems to us to be a pertinent reply to that of appellant’s counsel. It is. manifest from the entire record that there were cases pending against appellant, Williams, and Viola May King, growing out of this same transaction, and we cannot think the jury understood that the district attorney was referring to any other cases than the one on trial and those against his codefendants. Of course, the language could be given a broader significance, but we hardly feel inclined to hold that state’s counsel was forced to reply to appellant’s counsel in language so critical and accurate as to be subject to only one construction. To do so would condemn us to the charge of being hypercritical.

By bill No. 8, appellant complains that the district attorney told the jury that “the record in this case shows that the defendant led an expedition of crime in this county.” If the state’s testimony is true, this is exactly what the record shows, and the trial court was overly generous to the appellant in instructing the jury to disregard this argument.

Bill No. 9 complains of the argument of the district attorney to the effect that defendant was responsible for the jury not having before them a written statement of Viola King. This bill fails to show what the written statement contained, and in its absence we cannot say that there was error in this matter.

Appellant seriously contends that the facts are insufficient, in that there is no corroboration of the accomplice Viola May King. We cannot agree to this contention. The stolen goods were found on the premises occupied by appellant and Williams and King jointly. It was found in different rooms in the house. According to the arresting officer, appellant went with him upstairs,' and there appellant got a gun and tried to escape. It occurs to us that all these circumstances constitute some testimony tending to connect appellant with the offense charged.

Finding no error in the record, it is our opinion that the judgment should be affirmed.

PER 0T1RIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

BERRY, J.

The appellant contends, in his motion for rehearing, that we were in error in concluding that appellant’s bill of exceptions No. 5 does not state as a fact that he was Tinder arrest when the statement complained of in said bill was made.

We have again carefully considered this fcill, and have reached the conclusion that tve were in error in this particular. The bill shows that Britton, the city marshal of Hamlin, testified that on the night of October' 22, 1923, he, together with Sheriff Bird-well and Deputy Stone, searched a certain house on the Stovall farm, jointly occupied by defendant and A. 0. Williams and Viola May King, and further testified “that a number of the alleged articles stolen from the J. B. Jones residence was found in a certain trunk in the upstairs room of said building, and that immediately thereafter defendant was arrested by said officers.” The bill then states that the question objected to was propounded to the witness Britton at this point. On a more mature consideration of the question we have coneludod_ that a reasonable conclusion to be drawn from this bill is that the appellant was under arrest at the time the statement objected to was made. This testimony being a vital circumstance against the appellant in the case, and the issues being very sharply drawn as to the appellant’s guilt, we think that its admission was harmful to the appellant, and is of such nature as to require a reversal of the ease.

It is therefore our opinion that the motion for rehearing should be granted, and that the judgment should be reversed, and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court. 
      <&wkey;For other cases see same topic and KEY-N UMBER in all Key-Numbered Digests and Indexes
     
      otiler eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     