
    HAWTHORN v. STATE.
    (Court of Criminal Appeals of Texas.
    April 19, 1911.)
    1. Indictment and Information (§ 132)— Necessity of Election — Burglary.
    AVhere an indictment for burglary contained two counts, one charging burglary of a private residence and the other burglary in the ordinary form, and the evidence, which was circumstantial, fairly showed that the burglary was at night, but would have sustained a finding that it was committed in the daytime, the court did not err in refusing to require the state to elect upon which count a verdict would be asked.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-453; Dec. Dig. § 132.]
    2. Indictment and Information (§ 127)— Joinder of Counts.
    It is proper pleading to charge as many counts as necessary growing out of a single transaction to meet any probable phase of the testimony that may be developed upon the trial.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 401, 403; Dec. Dig. § 127.]
    3. Burglary (§ 46) — Prosecution—Instructions.
    In a prosecution for burglary on an indictment embracing two counts, one charging burglary of a private residence and the other burglary in the ordinary form, where the court submitted both counts in the charge, giving accused the benefit of the law applicable to both, it was not error to refuse a requested charge that if the jury entertained a reasonable doubt as to whether the burglary was committed in the- daytime as defined in the main charge, or in the nighttime as defined in such charge, they should find accused guilty of burglary in the daytime, the punishment for which might have been less than for a nighttime burglary.
    [Ed. Note. — For other cases, see Burglary, Dec. Dig. § 46.]
    4. Criminal Law (§ 829) — Instructions.
    Where accused explained his possession of clothes taken from the burglarized house by stating that he got them from another about three or four miles from the burglarized house, and the court charged that if the jury believed that accused bought the clothes, or if they had a reasonable doubt thereof, they should acquit him, fully covered the explanation given by accused, and it was hot error to refuse a requested charge on such explanation in another form.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 829.]
    5. Burglary. (§ 41) — Sufficiency of Evidence.
    Evidence held to support a conviction of burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 94-103; Dec. Dig. § 41.] .
    6. Burglary (§ 42) — Evidence—Unexplained Possession of Stolen Goods.
    Where a house has been burglarized, evidence of accused’s unexplained possession shortly afterwards of goods taken from the house is sufficient to sustain a conviction.
    [Ed. Note. — Eor other cases, see Burglary, Cent. Dig. §§ 80, 101-107; Dec. Dig. § 42.)
    7. Burglary (§ 29) — Proseoutxow—Burden of Proof.
    In a burglary case, where accused gives an explanation of his recent possession of the stolen goods, the burden is upon the state to disprove such account to the satisfaction of the jury, and, if such explanation put in evidence is shown to be false, a conviction can be had.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 79-82; Dec. Dig. § 29.]
    Appeal from District Court, Ellis County; F. L. Hawkins, Judge.
    Dan Hawthorn was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Itep’r Indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at seven years’ confinement in the penitentiary.

The indictment contains two counts, one charging burglary of a private residence, and the other charging burglary in the ordinary form. The jury convicted under the first count.

1. The first bill of exception is reserved to the refusal of the court to sustain the motion to require the state to elect upon which count a verdict would be asked. As before stated, the jury convicted upon the first count, which charged burglary of a private residence. The case was one of circumstantial evidence.

It is proper pleading to charge as many counts as is thought necessary growing of a single transaction to meet any probable phase of the testimony that might be developed upon the trial. It being a case of circumstantial evidence, and the evidence while fairly clear that the burglary was at night, yet it might have been committed in the daytime. Under this condition of the record, we are of opinion the court did not err in not requiring an election.

2. Appellant requested the court to charge the jury if they entertained a reasonable doubt as to whether the burglary was committed in the daytime as defined in the main charge, or in the nighttime as also defined in the main charge, they should find defendant guilty of burglary in the daytime. This presents a very pretty question, and one that has not been called to our attention heretofore; that is, whether appellant should have been given this distinct charge, inasmuch as the punishment for the daytime burglary might have been less than for a nighttime burglary, because one was the burglary of a private residence, and the other would not be within the terms of that statute. As this record presents the matter, we are of opinion that there was no error. The court submitted both counts in the charge, and in this way appellant had the benefit of the law applicable to both counts. The jury under the charge was sufficiently warranted in finding appellant guilty under the first count. While there is a possibility that appellant could have committed the burglary in the daytime, yet his own testimony, we think, rather tends to exclude such idea. The owner of the house closed and left it, so that the burglary could not have been committed in the daytime of the evening on which he closed the house. It was too late within the definition of the statute to have authorized the burglary in the daytime, but he did not return to the house until the sun was up two or three hours the following morning. Appellant testified that he got possession of the goods from another negro about 8:30 or 9 o’clock that night. Under appellant’s testimony, the goods were taken from the house between dusk and that hour of the night. Appellant says he bought the goods about three or four miles from the burglarized house from another negro. This would practically exclude any reasonable hypothesis that the house was broken into in the daytime.

3. Appellant asked the court to charge the jury in reference to the explanation given by him of his possession of the goods taken from the burglarized house, which charge is practically, if not literally, in the terms of the charge set out in Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913. The refusal of this charge is assigned as error. The court charged the jury: “If you believe the defendant bought the. suit of clothes claimed to have been taken from the alleged burglarized house, or if you have a reasonable doubt thereof, you must acquit the defendant.” We are of opinion that this charge is sufficient, and fully covers the explanation given by appellant of his possession of the suit of clothes. Mathews v. State, 32 Tex. Cr. R. 355, 23 S. W. 690; Williams v. State, 29 Tex. App. 167, 15 S. W. 285; Conners v. State, 31 Tex. Cr. R. 453, 20 S. W. 981; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913. Judge Henderson wrote the opinion in Wheeler v. State, supra, in which he wrote out a form of charge, which is substantially, if not exactly, copied by appellant in his special charge, but it will be noted in the Wheeler Case, Judge Henderson used the following language: “If in this case the court had pertinently charged on- the purchase of the hogs, this would have been sufficient without a charge on explanation. Mathews v. State, 32 Tex. Cr. R. 355 [23 S. W. 690].” It has also been intimated in some of the cases that, if the explanation given by the accused at the time he is called upon to explain is different from- that testified on the trial, the court may be required to give a charge in this form. But, be that as it may, so far as this case is concerned, it was unnecessary to give the requested instruction. The explanation given by appellant at the time he was first charged with the crime and that given toy him through the evidence on the trial is identical; that is, that he purchased the clothes taken from the burglarized house from another negro, whose name he did not undertake to mention. The court, as before stated, distinctly charged the jury that if appellant bought the suit of clothes, or they had a reasonable doubt of that fact, he should have the benefit of the doubt, and be acquitted. This sufficiently instructed the jury as to his defensive matter and without any circumlocution of verbiage; and the jury could not have misunderstood the court’s charge, and, inasmuch as appellant had the full benefit of his side of the case, we are not called upon to reverse the judgment because the charge was not repeated in another form or in different forms.

4. We do not think there is any merit in appellant’s contention that the evidence is insufficient. He was at the alleged burglarized house late in the evening, had a conversation with the owner of the house, in which a contract or agreement was entered into whereby appellant was to return the next morning and go to work for the owner picking cotton. In this conversation the owner notified or stated to appellant that he was going off for the night, but would be back in the morning. Appellant left the house before the owner did. The owner and his wife spent the night with the owner’s mother some half mile distant, returning home the following morning some time after sunrise. During the interval the house was burglarized, and a lot of property taken from it, among other things, a suit of clothes. Appellant was found in possession of the clothes a few days afterwards. He first denied having the clothes, and, when a girl standing by informed the officer and owner of the house appellant had carried the clothes to her mother’s, he then admitted having the clothes, stating that he bought them from another negro.

It has been held by the decisions that, where a house has been burglarized and a party is found in possession of goods taken from the house recently afterwards, unexplained, it would be sufficient evidence to justify a verdict of guilty.

It has also been held that, where the account of possession is given, the state is called upon to disprove to the satisfaction of the jury such account, and if the account put in evidence is shown to be false a conviction can be had. Recognizing those rules, we are of opinion the evidence does sufficiently show appellant’s possession of those goods was not honest. His statements, his testimony, and the other facts in the case are of sufficient cogency to show that the jury were correct in disbelieving his exculpatory statements as to how he came into possession of the property.

The judgment is affirmed.  