
    McPHERSON v. STATE.
    (No. 3918.)
    (Court of Criminal Appeals of Texas.
    Jan. 19, 1916.
    On Motion for Rehearing, Feb. 16, 1916.)
    1. Burglary <§==>36 — Prosecution — Evidence.
    In a prosecution for burglary of a saloon, where defendant, its former employs, was shown to have opened the saloon in the morning and closed it at night while working there, evidence that he had been in possession of a key, though he no longer worked there, was admissible.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 90; Dec. Dig. <§=>36.]
    2. Criminal Daw <§=372 — Evidence—Other Oefenses.
    In a prosecution for burglary of a saloon, evidence that a drug store in the same building was burglarized on the same night, the two transactions being so interwoven as to be but one in effect, was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §.§ 833, 834; Dec. Dig. <§=>
    3. Burglary <§=>41 — Conviction—Sufficiency of Evidence.
    In a prosecution for burglary, evidence held sufficient to support conviction.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. §§ 94-103, 109; Dec. Dig. <§=>41.]
    4. Criminal Daw <§=>368 — Evidence — Res Gestas.
    In a prosecution for 'burglary, testimony of defendant as to what another, also charged with the crime, with whom defendant denied acting in concert, had told defendant while the other was in the very commission of the act, as to how such other had gained entrance, was competent, though such other was not competent as a witness, since declarations made by a person who is incompetent to testify as a witness are admissible if part of the res gestae.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 806, 812, 814, 815, 821; Dec. Dig. <§=>368.]
    5. Criminal Daw <§=>359 — Evidence.
    In a prosecution for burglary of a saloon, the judgment showing that two persons, other than defendant, also charged with the crime, had pleaded guilty to burglarizing the saloon on the particular occasion, was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 789, 790; Dec. Dig. <§=> 359.]
    6. Criminal Daw <§=>359 — Evidence—Commission of Crime by Another.
    In a prosecution for burglary of a saloon, any testimony tending to show that parties other than defendant broke and entered the saloon was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 789, 790; Dec. Dig. <§=> 359.]
    7. Burglary <§=>16 — Principals and Accessories — ‘Principal. ’ ’
    One who stood out in front of a saloon, keeping watch, while others broke and entered it, was guilty of burglary as a “principal.”
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. § 3; Dec. Dig. <§=>16.
    Por other definitions, see Words and Phrases, First and Second Series, Principal.]
    8. Burglary <§=>16 — Principals and Accessories — Principal.
    The mere presence of defendant where and when a saloon was being broken and entered did not constitute him a principal in the crime of burglary, unless he aided by his acts, or encouraged by his gestures, those engaged in the offense.
    [Ed. Note. — Por other cases, see Burglary, Cent. Dig. § 3; Dee. Dig. <§=>16.]
    9. Criminal Daw <§=>792 — Tbiai>-Instruc-tions — Principals and Accessories.
    In a prosecution for burglary of a saloon, where defendant testified that he was called into the place to have a drink by parties engaged in committing the crime, and that he left as soon as he understood the true condition of affairs, defendant had the right to have presented to the jury the law., applicable to his defense, that he was not guilty as a principal, unless he aided in the commission of the crime.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 1818-1820; Dec. Dig. <§=> 792.]
    10. Criminal Daw <§=>841 — Triai>-Instruc-tions to Jury — Objection.
    Objection to the charge must be made before it is read to the jury.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. § 2022; Dec. Dig. <§=>841.]
    11. Criminal Daw <§=>656 — Trial—Remark of Court.
    In a prosecution for burglary of a saloon, where a detective testified that the morning after the burglary they searched defendant’s house and found none of the stolen property, the court’s remark that all the testimony of the witness could have been eliminated by objection by the state, because immaterial, was improper, as calculated to cause the jury to give but little weight to the testimony.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 1524-1533; Dee. Dig. <§=> 656.]
    12. Criminal Daw <§=>349 — Evidence — Fruitless Search.
    In a prosecution for burglary of a saloon, a detective’s testimony that he searched defendant’s house and found none of the missing property, defendant claiming that others, who had previously pleaded guilty to the burglary, and in whose possession stolen property had been found, were alone guilty, was admissible.
    [Ed. Note. — Por other cases, see Criminal Daw, Cent. Dig. §§ 778-785; Dec. Dig. <§=> 349.]
    13. Criminal Daw <§=>349 — Evidence.
    In a prosecution for burglary of a saloon, where defendant had admittedly been at the scene of the crime' when it was committed, but, as he claimed, with an innocent purpose, testimony that from the appearance of his clothing shortly after he had none of the stolen property on his person, was admissible.'
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 778-785; Dec. Dig. @=>349.]
    14. Burglary <@=>16 — Principal—Necessity for Concert.
    Defendant, present when a saloon was burglarized, entering from the front at the criminals’ invitation, while they entered from the rear, was not guilty as a principal, unless acting in concert with them.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3; Dec. Dig. <@=>16.]
    On Motion for Rehearing.
    15. Criminal Law <@=>1119 — Appeal and Error — Presentation op Grounds op Review.
    In a prosecution for burglary, a bill of exception showing that when the state started to cross-examine a witness the court remarked, “all_ this cross-examination could have been eliminated upon objection by the state, because the testimony is immaterial,” and showing defendant’s exception to the remark, was sufficient to present for review the error that the court’s remark would naturally cause the jury to give little weight to the testimony, which was material and important under other evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. <©=> 1119.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    John McPherson was convicted of burglary, and he appeals.
    Reversed, and cause remanded.
    Charles Murphy, of Houston, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

The state proved that appellant had been bartender for W. H. Connors, who owned a saloon in Houston. That the saloon was sold to A. Rainey, when appellant lost his position; the saloon was burglarized that night. Xll the evidence about the keys was admissible, as the evidence showed that appellant opened the saloon in the morning and closed it at night while working there, and therefore the state’s contention was that he was in possession of a key to the burglarized house, notwithstanding he no longer worked there, and these bills present no error. Neither does the bill that complains that the court permitted evidence to be introduced that the drug store of Ralph Hurloek was burglarized the same night. The saloon which appellant was charged with burglarizing and the drug store were in the same building, and, in placing appellant, his son and Hainey at this point on the night of the burglary, Hurlock fixed the time that he saw them at the time his store was burglarized, it being the same night the saloon was burglarized. The transactions were so interwoven as to be part and parcel of the same transaction.

However, as we view the record, there are several errors pointed out in the bills. The bills themselves are very vague, indefinite, and incomplete, but we think that bill No. 6 is sufficiently full and complete to present the matter complained of, and as it presents error, we will review all the questions wherein we think the court erred, regardless of whether or not the bills are full enough in and of themselves to manifest the error, so that they will not occur on another trial.

As stated, the state placed appellant, his son, and Hainey at the drug store at the time the drug store closed. Then by Mr. and Mrs. Fetters it proved that appellant, his son, and Hainey walked down in front of the saloon, and in a few moments turned and went into the saloon. The state also proved the saloon was burglarized. This evidence would support a conviction.

Appellant took the stand and admitted he was at the drug store, and said he walked down in front of the saloon, and was waiting for a car to go home. While standing there he was called by Frank Barefield, who was inside of the saloon, and asked if he did not want a drink; that he, his son, and Hainey turned and went in the saloon through an open door, and when he got in there he could see what was taking place; he then refused to drink, and he and his son at once left; that as he left Ford was passing along with his arms full of bottles of whisky, and asked him if he wanted a portion of it, and he told him no. It is seen his defense was that Bare-field and Ford burglarized the saloon, and while he went into the saloon, his acts were not such as to constitute him a party to the crime, either as principal, accomplice, or accessory. While testifying, as shown by one bill, he desired to testify to what Barefield told him on that occasion how he said he (Barefield) got into the house. The court excluded this testimony on the ground that Barefield would not be a competent witness, as he was also charged with the offense. There is no doubt that Barefield would not •be a competent witness, but what appellant wished to testify to was res gestse of the crime. Barefield made the remarks while engaged in the very act, and it has always been held that declarations made by a person who is incompetent to testify as a witness are admissible if res gestse of the transaction. Neely v. State, 56 S. W. 626; Croomes v. State, 40 Tex. Cr. R. 675, 51 S. W. 924, 53 S. W. 882; Kenney v. State, 79 S. W. 817, 65 L. R. A. 316; Hunter v. State, 54 Tex. Cr. R. 226, 114 S. W. 124, 130 Am. St. Rep. 887; Thomas v. State, 47 Tex. Cr. R. 534, 84 S. W. 823, 122 Am. St. Rep. 712. Appellant was testifying (and that was his defense) that Barefield and Ford alone committed the burglary, and anything that was said or done tending either to prove or disprove that fact would be admissible if res gestse of the transaction. It is the event speaking, not the person testifying. Mr. and Mrs. Fetters did not see Ford or Barefield — they only saw appellant, Ms son, and Hainey enter the saloon.

Appellant desired to introduce the judgment showing that Barefield and Ford had pleaded guilty to burglarizing this saloon on this occasion. This judgment should have been admitted.

It is evident from the state’s testimony that all five men did not enter from the front door, and did not go in together. Any testimony which would tend to show that Ford and Barefield alone were the parties who broke and entered the saloon should have been admitted, as this was a part of appellant’s defense. Beginning with Du Bose v. State, 10 Tex. App. 251, we have an unbroken line of decisions holding that when the issue is whether or not the person on trial committed a crime, he has the right to show that some other person committed it, and any evidence tending to show that fact is admissible. Kunde v. State, 22 Tex. App. 97, .3 S. W. 325. In that case it was held that threats and acts of a codefendant proximately connected with the transaction, .tending to show that he committed the crime, are admissible. Of course, the question would then arise as to whether appellant on the occasion so conducted himself as to be a principal in the transaction. If he was standing out in front, keeping watch, while Barefield and Ford broke and entered the saloon, he would be a principal. The court submitted properly the law as to who are principals, but he nowhere in the charge instructed the jury that the mere presence of appellant at the time and place of the commission of the crime would not constitute him a principal, unless he aided by acts, or encouraged by gestures, those engaged in the offense. Under appellant’s testimony he had the right to have presented the law applicable to the state of case upon which he relied for a defense. This was not complained of before the charge was read to the jury, but inasmuch as the case will be reversed on other grounds, we call attention to it so that the law may be properly applied on another trial.

Appellant testified that when he saw Barefield and Ford in the saloon, and understood what they were doing, he at once left. He testified to meeting several people on his way home, and he desired to prove by these people that he had nothing in his hands, and his clothing gave no evidence that he had anything in his pockets or concealed beneath his clothing. He further desired to prove by city .detectives Lyons and Martin that the morning after the burglary they searched the house of appellant and found none of the stolen property in his house nor in his possession. Detective Lyons did testify that he searched appellant’s premises and found none of the stolen property. When the state went to cross-examine tMs witness the court remarked:

“All this cross-examination of the testimony of this witness could have been eliminated upon objection by the state, because the testimony is immaterial.”

Exception was reserved to the remark that the court considered immaterial the testimony of Detective Lyons that he had searched the premises of appellant and found none of the stolen property. This remark was calculated to cause the jury to give but little, if any, weight to Lyon’s testimony. Appellant also offered Detective Martin as a witness, and desired to prove by him that he searched appellant’s premises and found none of the missing property. The court sustained objection to this testimony, and excluded it. We think this testimony clearly admissible, and the remark of the court was improper. If those officers had found in their search a portion of the missing property, this court has held recent possession of stolen property, unexplained, will sustain a conviction. Jackson v. State, 28 Tex. App. 370, 13 S. W. 451, 19 Am. St. Rep. 839; Brown v. State, 56 Tex. Cr. R. 87, 119 S. W. 312; Strickland v. State, 78 S. W. 689. Then why should not evidence that appellant’s premises were searched by the officers and none of the stolen • property found be admissible as a circumstance' in his favor, as much so as the circumstance that goods were found be admissible for the state? One is a circumstance tending to show guilt, while the other is a circumstance tending to support Ms plea of innocence, and especially in this case does this testimony become very material, for appellant admits going in the saloon, as he says, being asked by Bare-field and Ford, who have pleaded guilty to burglarizing this saloon on this occasion. The goods were found, or a portion of them, apparently from this record, in the possession of Ford and Barefield, but there is no evidence that any of the goods were found in appellant’s possession,' or in the possession of his son or Hainey, the three men the Fetters saw together, and saw enter the saloon. Certainly the testimony would have a strong tendency- to show that appellant’s testimony as to why he entered the -saloon and immediately left when he saw what was occurring was probably true, and if true he was entitled to an acquittal.

On another trial the court will admit the testimony of the res gestae statements of Barefield; he will admit the testimony that from the appearances of appellant’s clothing he had none of the stolen property in his pockets or concealed about his person, while on Ms way home from the saloon, that is, so far as the witness could judge from appearances; he will admit the testimony that appellant’s premises were searched by Officers Lyons and Martin, and they found none of the stolen property in his possession, nor on his premises; he will admit the pleas of guilty of Barefield and Ford that they committed this burglary, and then he will properly apply , the law as to who are principals, presenting appellant’s theory as made "by the testimony, as well as the law as applicable to the case as made by the state’s evidence.

If Barefield and Ford had already broken and entered the saloon before appellant, his son, and Hainey went into it, they would not be guilty as principals with Bare-field and Ford, unless they were acting with them. If there was no acting together, and Barefield and Ford entered from the rear or some other door before appellant, his son, and Hainey entered at the front door, appellant could not be held responsible for the acts of Ford and Barefield. He would not be a coprincipal with them or either of them, even though he entered the saloon at the invitation of Barefield, who was a former owner of the saloon, after the entry had been made. The testimony of Mr. and Mrs. Fetters for the state would have a tendency to show that appellant, Ms son, and Hainey were not acting with Barefield and Ford, even if appellant, his son, and Hainey broke, within the contemplation of law, the front door. Mr. and Mrs. Fetters did not see Bare-field nor Ford. They only saw the other three, and appellant’s explanation, if true, would show that he was not at least acting with Ford and Barefield. Of course, the circumstances raise the issue that he may have been acting with them, and the law should be properly submitted presenting the various phases as made by the testimony.

We do not deem it necessary to discuss the other questions raised.

The judgment is reversed, and the cause remanded.

On Motion for Rehearing.

The state has filed a motion for rehearing, insisting that bill of exception No. 6 is insufficient in that the answer of the witness is not stated and copies bill No. 7 in the motion. This was not the bill we held sufficient, but it was bill No. 6 which complained of the comment of the court on the weight to be given the testimony of the witness Lyons. Lyons had testified that he went to the home of appellant to see if he could find any of the articles stolen out of the burglarized house; that he searched the house and did not find anything they were looking for. After the witness had so testified, bill No. 6 shows that when the state started to cross-examine this witness, the court remarked:

“All this cross-examination could have been eliminated upon objection by the state, because the testimony is immaterial.”
Defendant: “We reserve an exception to the remark of the court.”

The defendant then desired to prove similar testimony to that of Lyons by Detective Martin — to prove by Martin that defendant had none of the stolen goods at his house. The court refused to permit him to prove these facts by Martin, and sustained an objection to his testimony. Defendant then proceeds in the bill to state that he objected to the remarks of the court as being upon the weight to be given the testimony; and, as the remarks of the court were calculated to and would- cause the jury to give no weight to the testimony of Detective Lyons that he searched appellant’s house and found none of the stolen goods in appellant’s possession, we held this bill presented error, and are still of that opinion, and the question is sufficiently presented in the bill to authorize us to review the action of the court.

The motion for rehearing is overruled. 
      <@=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     