
    ROQUEMORE v. STATE.
    (No. 10947.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    1. Burglary <&wkey;45 — Evidence held to make defendant’s guilt issue for jury in burglary prosecution.
    In prosecution for burglary of box car, from which some bacon and shotgun shells had been taken, evidence held sufficient to make defendant’s- guilt issue for jury.
    2. Criminal law <&wkey;4038(3), 1056(1) — Failure to charge on circumstantial evidence does not warrant reversal, where no instruction thereon was requested, and no exception taken.
    
    Failure to charge on circumstantial evidence is not ground for reversal, where no such charge was requested, and no exception taken t.o failure of court to submit case on theory of circumstantial evidence.
    3.Criminal law <&wkey;537 — Statem'ent of defendant under arrest, followed by pointing out of alleged stolen property referred to, held admissible in burglary prosecution (Code Cr. Proc. art. 727).
    In prosecution for burglary, admission of statement made by defendant while under arrest, where statement was followed by action of defendant in pointing out alleged stolen property at place mentioned by him in statement, held not error, under Code Or. Proc. art. 727.
    Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.
    Emmett Roquemore was convicted of burglary, and be appeals.
    Affirmed.
    George H. Cavanagb and Douglas McGreg- or, both of Houston, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for tbe State.
   LATTIMORE, J.

Conviction for burglary; punishment, five years in tbe penitentiary.

A box car, on what is known as tbe bouse track of tbe Missouri, Kansas & Texas Railway Company in Houston, Tex., was loaded with miscellaneous merchandise on November 16th. Tbe goods were checked into it by one Maderis. One Williams testified that he put a seal on every car on said bouse track on tbe afternoon of the 16th. Tbe cars were to be moved 'away from Houston that night. Wheeler swore that about 1 o’clock on tbe night of tbe 16th he found one of said cars bad been broken open. He reported tbe matter at once to tbe officers. Tbe car was checked up, and found short some bacon and shotgun shells. Mr. McCoy said on tbe afternoon of tbe 16th of November be saw appellant and one Banks six or eight miles from Houston. They were a short distance away from their car, and asked tbe officer for some gasoline. He told them be would give them some, and indicated that they go to a certain house and get a can and come back. 1-Ie drove down to their car. When he got there, be looked around and saw appellant and bis companion not going toward tbe bouse indicated, but moving rapidly away. He overtook them in bis car and carried them to jail. Both negroes made a statement to tbe officers while under arrest, by means of which a sack of bacon and a box of shotgun shells were located which appellant said be bad gotten from a box car at tbe Missouri, Kansas & Texas depot that evening.

Appellant, after making tbe statement to tbe officers in tbe same terms as same bad already been made by bis companion, accompanied tbe officers and pointed out to them tbe place where tbe goods were found. Tbe officers said they were taken back and identified by one of tbe men, who had already testified in this case. Mr. Maderis said the bacon and shotgun shells were returned, and he identified them as the same articles that he had checked into the box car the day before. Mr. Easton testified he had the care, control, and management of said box car on said liouse track, and that he gave no one permission to break the seal, or to enter the car, or take the property. We have no doubt of the fact that circumstantially this evidence is sufficient to make out a case against appellant. No charge was given on circumstantial evidence, but none was requested, and no exception was taken to the failure of the court to submit the case to the jury on such theory. We think the court did not err in refusing a peremptory instruction to acquit.

If we comprehend bill of exceptions No. 2, it complains of the receipt in evidence of a statement made by appellant while under arrest. We have no doubt of the admissibility of said statement (same being followed by the appellant accompanying the officers and pointing out the alleged stolen property at the place mentioned by him in the statement) under article 727, C. C. P. All the other bills of exception are qualified by the learned trial judge, and each of them has received our careful consideration, but in the light of the qualification attached we do not think any, of the bills present error.

The judgment is affirmed. 
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