
    HOWINGTON v. STATE.
    (No. 7599.)
    (Court of Criminal Appeals of Texas.
    April 4, 1923.
    Rehearing Denied June 13, 1923.)
    1. Burglary <&wkey;4l(l) — Evidence held sufficient to support a conviction.
    In a prosecution for burglary, evidence held sufficient to support a conviction.
    2. Criminal law &wkey;»l 169(1) — Testimony that witness went to building where accused was found because of suspicion held not injurious.
    In a' prosecution for burglary in which the accused was found in a hotel near the scene of the offense, testimony of a witness that he went to the hotél in the first instance because of suspicion, to which an objection was made when the witness was answering a succeeding question, was not injurious, even if the objection had been promptly and properly made, in view of the fact that the house did not belong to the accused, and the witness did not know he would be found in it.
    3. Criminal law <&wkey;>I09l(5) — Bill of exceptions not showing circumstances surrounding rejected testimony insufficient.
    In a prosecution for burglary, a bill of exceptions complaining of the rejection of testimony t;hat the accused at a certain time could have fled if he had wished, which did not show that he was not under arrest, was insufficient by reason of its failure to show conditions from which the materiality of the testimony could be ascertained.
    4. Burglary <S&wkey;39 — Exclusion of testimony as to whether witness first suspected another than accused held proper.
    In a prosecution for burglary in which there were .many facts on which a theory that another person was assisting the accused could be based, excluding a question by the accused to a witness as to whether he had not first suspicioned the other person, and if she were not in a house and restaurant near the scene of the burglary about the time of the offense, was proper, as it was immaterial which person the witness first suspected.
    5. Criminal law <&wkey;763, 764(8) — Charge on weight of evidence properly refused.
    In a prosecution for burglary, a special charge setting out at length testimony given by the accused and concluding with an instruction to the jury, if they should find from the evidence the matters contained in the special charge were true, to acquit the accused, was a charge on the weight of the evidence and was properly refused.
    6. Burglary <&wkey;46(2)—Charge defining “burglary” as entering a house with Intent to commit a felony or theft not erroneous.
    In a prosecution for burglary, where the facts showed that whoever entered the house did so with intent to commit, and did commit, a felony theft, an instruction giving the statutory definition of “burglary,” that it was constituted by entering a house, etc., with the intent of committing a felony or the crime of theft, was not erroneous because referring to an entry with intent to commit a felony while it was pleaded that the entry was for the purpose of committing theft.
    [Ed. Note.—Eor other definitions, see Words and Phrases, First and Second Series, Burglary.]
    On Motion for Rehearing.
    7. Criminal law <&wkey;l 141 (2)—Presumption Is In favor of correctness and regularity of rulings of trial court.
    On appeal every presumption is in favor of the correctness and regularity of the rulings of the trial court until by. sufficient averment in the bill of exceptions complaining thereof the incorrectness or irregularity of such action is made to appear.
    (©ssjFor other cases see same topic and KEY-NUMBJBR in all Key-Numbered Digests and Indexes
    Appeal from District Court, Eastland County; Geo. L. Davenport, Judge.
    C. E. Howington was convicted of burglary, and be appeals.
    Affirmed.
    James A. King, of Austin, and Chastain, Jud-kins & Chastain, of Eastland, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   DATTIMORE J.

Appellant was convicted in the district court of Eastland ebunty of burglary, and his punishment fixed at two years in the penitentiary.

Without dispute in the record It is made to appear that a drug store belonging to a Mr. Livingston was broken and entered at night about the 23d of May, 1922, and from a tray of jewelry containing watches, rings, lavalliéres, wrist watches, etc., about 13 watches and 23 rings were taken. The glass of a window of the drug store was broken in the entry. Blood was discovered in the immediate vicinity of the broken window and traced across the street and up a fire escape into a hotel, down the hall and into a room in which appellant was when the the searching party arrived. Appellant seemed to be asleep when they entered. In the examination of appellant a fresh cut was found on one of his fingers, and according to the testimony of one of the witnesses it seemed to be still bleeding. The proprietor of said hotel was a woman by the name of Billie Jenkins. The searching party aroused the proprietor and made some search of the premises. In a junk room not far frdm the room occupied by appellant a laundry bag was discovered and in it were found the missing articles of jewelry. Appellant toot the stand in his own behalf and testified that on the nigbt in question he left his room in said hotel and went down the fire escape, thinking he would go into the restaurant under the hotel and get something to eat. This was about 4 o’clock a. m. The restaurant was closed. Appellant said when he got to the foot of the fire escape and stopped a short distance from it two men passed by and one of them cut him on the hand, and that he “beat it” back up the fire escape to his room. He also said that he presently heard the officers talking and went back down the fire escape and found the officers and Miss Billie Jenkins in conversation. In our opinion the evidence was sufficient to justify the jury’s conclusion of guilt.

Appellant’s first bill of exceptions is leveled at testimony of Mr. Livingston to the effect that the thing that made him go to the'Southern hotel in the first instance was his suspicion. An examination of said bill reveals the fact that witness made the statement apparently complained of, and was asked some other question -and was partially engaged in answering the latter when appellant’s attorney objected to the testimony of the witness as to his suspicions. There is nothing in the bill from which we may apprehend injury to the appellant even if the objection had been promptly and properly made, which, however, we do not believe to be the fact. The house did not belong to appellant, nor did Mr. Livingston know he would be found therein.

Appellant asked a state witness the following question:

“Was there anything, from the time he was in the restaurant there, to prevent him from leaving the country, if he had wanted to?”

The bill recites that the question was objected to by state’s counsel and the objection sustained. It is stated that appellant contended it was competent and permissible to prove that defendant was not under arrest and could have left the country if he had desired, in order to show that he was not conscious of any guilt. There is nothing in the bill that affords us any light upon the question as to whether appellant was under arrest at the time or not. There is nothing stated whatever in said bill reflecting the situation or .surroundings of the witness or the appellant from which we could conclude that the testimony was of any materiality. In the preparation of a bill of exceptions, we have often said that care should be taken to state enough of the facts and circumstanó-es surrounding and affected By the proposed or rejected testimony to enable us to understand and decide the question of injury. Turner v. State (Tex. Cr. App.) 246 S. W. 87.

Appellant also complains because he was not allowed to ash Mr. Livingston while on the witness stand if he had not first ac.cused one Billie Jenkins of the burglary for which appellant was now being prosecuted, and if it was not a fact that Billie Jenkins was in the house and restaurant about the time of the burglary. The objection of the state was properly sustained. There are many facts in this record upon which might be based the theory that appellant and Billie Jenkins were operating together in the transaction in question, and it would be immaterial as to which of said parties was first suspected by Mr. Livingston of being the burglar.

A special charge setting out at length testimony given by the appellant and concluding with an instruction to the jury that, if they should find from the evidence the matters contained in said special charge to be true, they would acquit the defendant, is a charge upon the weight of the evidence and was properly refused.

In his charge to the jury the court gave ' the statutory definition of burglary, that is, that burglary was constituted by entering a house, etc., with the intent of com-, mitting a felony or the crime of theft. Appellant complained of the reference in the charge to the proposition of an entry with intent to commit a felony, averring that it was only pleaded that his entry was for the purpose of committing theft. We are inclined to think counsel for appellant somewhat critical. The charge of the court applying the law to the facts restricted the jury to the consideration of an entry for the purpose of committing theft. The facts abundantly showed that whoever entered the house did so with the intent to commit and did commit felony theft.

No error appearing in the record, an affirmance will be ordered.

On Motion for Rehearing.

Appellant insists that we erred in1 not sustaining his bill of exceptions No. 1, and discusses at length the impropriety of sustaining convictions founded upon suspicions. We: do not entertain the same view of appellant’s said bill which seems to be in his mind. From our original opinion it will be observed that the house in which the property taken from the alleged burglarized house was found was across the street from said house in which the burglary, if any, was committed. The party who found the property in said building, which was the Southern Hotel, was asked while on the witness stand what attracted his attention to said hotel. His reply was that his suspicions were all. This was wholly immaterial and was in no wise relied upon and might well have been omit-, ted.. What attracted his attention to the house in which he afterwards found the burglarized property could cut no figure in the case one way or another, and his- statement of the fact that his attention was attracted in that direction by his suspicions amounts to nothing. The evidential fact and the important matter is that he went to said-house and found therein the stolen property, and found on the fire escape of said building blood, and also found in said building the appellant with' a freshly cut wound on his hand. These latter facts are material, and the fact that the witness was caused to go to said house by suspicions could cut no figure. Appellant did not own the house and-was not known or believed by the party whose testimony is thus complained of to be in said house, and, if the fact that witness Was led to go to said house by suspicions could be objectionable' at all, it would seem to be at the instance of the party who rad the house or controlled the premises and not at this appellant, whose presence therein, as well as that of the stolen property, was wholly unknown to said witness. ,

Appellant insists that wé misapprehended his bill of exceptions No^ 2, and that by the evidence rejected by the trial court, and for the refusal of which' appellant complains, he expected to show that he was not under arrest but was free to go where he pleased, and the fact that he did not Sun away or make any effort to escape was a circumstance sustaining the proposition that he was not the guilty party. We again repeat that we do not know, and are not informed by the bill of exceptions, what objections were made to the question. On appeal every presumption is in favor of the correctness and regularity of the rulings of the trial court until by sufficient averment in the bill of exceptions complaining thereof the incorrectness or irregularity of such action is made to appear. If we presumed that the state objected on the ground that the evidence showed the appellant to be under arrest, and that fact was known to the trial-court from other evidence, and he therefore sustained' the state’s objection, his ruling would have 'been correct. Appellant puts nothing in his bill by which- we may' know what objection was made by the state, nor what the testimony surrounding the question, might be.

We have again reviewed the proposition that the court erred in not allowing appellant to show that Billie Jenkins, the proprietress of the Southern Hotel, was first accused of the burglary. We again confess our inability to perceive the injury of this question. The issue before the jury was whether appellant in fact committed the burglary, and we are wholly unable to perceive how the proposition that Billie Jenkins, in whose house appellant was found shortly after the burglary, and im whose bouse tbe stolen property was found, was first accused of said burglary could have any legitimate weight in determining who in fact committed tbe burglary.

Being of opinion that tbe case was correctly decided, the motion for rehearing will be overruled.  