
    WILSON v. STATE.
    (No. 9480.)
    (Court of Criminal Appeals of Texas.
    Feb. 3, 1926.
    Rehearing Denied March 17, 1926.)
    1. Burglary i&wkey;4l (4).
    In prosecution for burglary, entry of building by breaking held, shown by evidence.
    2. Burglary &wkey;>9(l).
    Entry by breaking in burglary is effected by raising window or by use of any sort of key which would unlock door.
    3. Criminal law <&wkey;530 — Where written confession contained legal warning, recitals of which were not contradicted, confession was properly introduced in evidence as against contention that accused was not properly warned.
    Where written confession contained legal warning, recitals of which were not contradicted therein, and which accused, when on the witness stand, did not deny, confession was properly admitted in evidence as against contention that accused was not properly warned.
    4. Criminal law <&wkey;53l(3) — Testimony of accused that confession was untrue, that he signed it to get out of jail, is insufficient to attack voluntary character of confession.
    Testimony of accused that confession was untrue, that he signed it to get out of jail, and would not have signed it if he had not thought he could get out of jail, is insufficient to attack voluntary character of confession; there being no assertion that any one in authority induced him to make it.
    5. Criminal law <&wkey;78l(4) — Refusal to charge that, unless confession was true, case was one of circumstantial evidence, was not error.
    Refusal to charge to not consider confession unless true, and that, unless confession was true, case was' one of circumstantial evidence, was not error, as singling out direct testimony and instructing that, if untrue, then case is one of circumstantial evidence, is unsound doctrine.
    6. Criminal law 1 [86(4) — Charge in burglary prosecution that entry meant any kind of entry without consent of occupant or owner held harmless error (Code Cr. Proc. 1911, art. 743).
    Charge in burglary prosecution that entry meant any kind of entry without consent of occupant or owner of building was not reversible error, where the facts show the entry was at night and by breaking, in view of Code Cr. Proc. 1911, art. 743.
    7. Criminal law <&wkey;l 186(4).
    Errors in the charge are not reversible under Code Cr. Proc. 1911, art. 743, unless hurtful to the rights of the accused.
    
      8. Criminal law <3=1172(1).
    In burglary prosecution, definition of “force” ■as manipulation or effort employed to overcome any obstruction whatsoever, was not reversible error.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Force.]
    8. Burglary <&wkey;46(4) — Criminal law <&wkey;l(72 (f) — Definition of “nighttime” as any time within the 24 hours from 30 minutes after sunset until 30 minutes before sunrise was not reversible error, but words “within the 24 hours” should be omitted (Vernon’s Ann. Pen. Code 1916, art. 1310).
    In burglary prosecution, definition of “nighttime” as any time within the 24 hours from 30 minutes after sunset until 30 minutes before sunrise, according to Vernon’s Ann. Pen. Code 1016, art. 1310, was not reversible error, but the words “within the 24 hours” should be omitted.
    [Ed. Note. — For other definitions, see Words and Phrases, First, and Second Series, Night — . Nighttime.]
    10. Criminal law <3=538(3).
    Contention in burglary prosecution that, in spite of accused’s confession, case was one of circumstantial evidence, could not be sustained.
    11. Burglary <&wkey;3l — In burglary prosecution, it was proper to detail condition of building morning after burglary, or vault, movements of officers, finding of secreted articles, such as were apparently used in effort to get into vault, watch kept of them, and arrest of accused where same were hidden, night after burglary.
    In burglary prosecution, it was proper to •detail the condition of the building morning after the burglary, of the vault, movements of the officers, the finding of secreted articles, such as were apparently used in the effort to get ■in the vault, watch kept of such articles, arrest of appellant and others in place where same ■were hidden night after the burglary.
    12. Burglary <&wkey;37— In burglary prosecution, admission of evidence that at various times near that of burglary articles similar to such as were apparently used in it were missed from shops where accused worked was not error.
    In burglary prosecution, admission of evidence that various articles similar to articles found secreted after the burglary and in the hiding place of which accused was arrested were missed in shop where accused worked was not error.
    13. Witnesses <&wkey;393(3) — Accused’s witness’ testimony before grand jury Is admissible to impeach witness.
    Accused’s witness’ testimony before grand jury as to statements of accused trying to induce him to aid him to rob bank is admissible to impeach witness.
    On Motion for Rehearing.
    14. Burglary <&wkey;4l(5).
    Evidence held, sufficient to show that entry into alleged burglarized building was in the .nighttime.
    15. Burglary <&wkey;22 — Where bookkeeper was In charge of bank building during cashier’s absence, ownership was properly laid in him, in indictment for its burglary (Vernon’s Ann. Code Cr. Proc. 1916, art. 457).
    Where bookkeeper was in charge of bank building while the cashier was out of the state, ownership was properly laid in him, in an indictment for its burglary; rules as to alleging and proving ownership in burglary cases being the same as in theft cases under Vernon’s Ann. Code Cr. Proc. 1916, art. 457.
    16. Burglary <&wkey;22.
    Burglarized building belonging to corporation is sufficiently described as to ownership by alleging same in the person in possession.
    Appeal from District Court, Hill County; Horton B. Porter, Judge.
    C. G. Wilson was convicted of burglary, and he appeals. Affirmed.
    Wear, Wood & Wear, of Hillsboro, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State's Atty., of Tyler, for the State.
   LATTIMORE, J.

From conviction in the district court of Hill county of burglary, with punishment fixed at 6 years in the penitentiary, appeal is taken.

The case is well briefed, and we notice the points in the order discussed. It is insisted that a verdict for appellant should have been instructed, because the evidence failed to show any breaking of the building, or that it was entered by force, threats, or fraud. Appellant’s confession was introduced. In it he said that he with others went into the bank at night, and that they burglarized said bank. Plenty of evidence was found in the building the next morning after the alleged burglary to show that persons had entered same. Mr. Patterson, who had charge of the bank in the absence of its cashier, said that he locked the doors and closed the windows of the building when he left it about 5 p. m. on the afternoon before the alleged burglary that night. When .he came to the building the next morning it was in the same condition as when he left it, viz.: Its windows were closed, and the doors locked. The vault of the bank showed plenty of evidences of attempts to penetrate it. On the floor of the bank were many articles which were not there when the bank was closed. These facts suffice to show an entry of the building by breaking. Such entry could be effected by raising the windows, or by the use of any sort of key which would unlock the door.

Appellant next contends that the evidence failed to show that the building was occupied and controlled by Mr. Patterson as alleged in the indictment. We cannot 'agree to this proposition. The bank building was located in the little town of Osceola and was run by two raen; Mr. Edrington being tbe cashier, and Mr. Patterson the. bookkeeper. Edring-ton was in Denver, Colo., at the time of the alleged bu'rgláry, and had left the building and its contents in Patterson’s’ charge. In such ease authorities are numerous upholding the allegation and proof of ownership and control of the bank and its contents in the person who occupied the relation to same as did Mr. Patterson. See section 2324, Branch’s Annotated P. C. for authorities. Daggett v. State, 44 S. W. 148, 842, 39 Tex. Cr. R. 5, cited by appellant, holds against him and affirms the doctrine,that an owner residing only 8 miles from tifie burglarized premises, which were in the care and control of an employé who lived thereon, did not in law have the actual care, control, and management of the house alleged to have been'burglarized, and that it was proper to allege the ownership in the occupant. Ratcliff v. State, 229 S. W. 857, 89 Tex. Cr. R. 176, also cited, is of the same import. In that case the real owner was prevented by .an accident from giving his personal attention to his business at the time of the alleged burglary, and it was held that ownership and control were properly alleged, in the man who was looking after it for the real owner. In the ease before us, the bank was a corporation; Edrington and Patterson being the only employes. Edrington had been gone from Osceola several days before the burglary, and did not return for some time thereafter. No other person had anything to do, with,the bank building in Edrington’s absence save Patterson. Allegation of ownership in Patterson was-proper and sustained by the'proof.

As stated above, appellant’s written confession, w.as introduced by the state. In it he said:

“I assisted Ike Weatherred and Edgar Ham-monds in completing arrangements to burglarize the .bank at Osceola, Tex. * * * We got to Osceqla and parked our car out near the schoolhouse. We then went on to the bank, and Stanley went out in front of the bank and said he would watch for us. Ike Weatherred, Edgar Hammond, and I-all went into the bank. * * * 'I was in and out of the building. * * * When we got back to Cleburne the night we burglarized the bank, Stanley carried the car back.to Joplin.”

The only objection made to the introduction of said confession was that the accused was not properly warned. The writing contained a legal warning, the recitals of which were not contradicted therein in any way, nor did appellant, when he took the witness stand, deny the giving of the warning set forth. The confession was properly admitted in evidence.

Appellant took the witness stand, and testified that he signed said confession, but in so far as samé connected him with said burglary its statements were untrue. He said he signed the statement to'get out of jail; that he was. broke.; that his wife and children were at home and he had not seen them since he was put in jail; and that he would not have signed the statement if he had not thought he would get out of jail. This constitutes all the attack made on the voluntary character of the confession, and in our opinion amounts to nothing. It is not asserted that any one in authority, directly or indirectly, did or said anything which induced appellant to make said confession. Williams v. State, 19 Tex. App. 279; Campbell v. State, 141 S. W. 232, 63 Tex. Cr. R. 595, Ann. Cas. 1913D, 858.

The trial court correctly refused appellant’s special charge No. 2, wherein he sought to have the jury told that they should not consider the confession unless they believed its statements to be true, and that, if they found same to be untrue, the case would be one of circumstántial evidence. There was no warrant for said charge, either in fact or law, and for this court to so hold would ingraft on our practice the singling out in any case of the direct testimony on which the state relied, and telling the jury in the charge that, if they did not believe this direct testimony to be true, then the case would be one of circumstantial evidence. The unsoundness of such doctrine needs no discussion.

The court’s charge is criticised for saying:

“The word ‘entry,’ as used in this charge, means any kind of entry without the consent of the occupant or owner of said building.”

Unless the facts show an entry at night and by breaking, such charge might be erroneous, but errors in the charge are not to be held reversible under article 743 of our O. O. P., unless hurtful to the rights of the accused. When the facts of the particular case show, as is the casé here, that the entry was at night and by breaking, the giving of a charge such as the one under discussion could be of no possible harm. Crane v. State, 240 S. W. 920, 91 Tex. Cr. R. 304. As in the case just cited, the court in "the instant case, in applying the law to the facts, told the jury they must believe beyond a reasonable doubt that appellant “at night, did unlawfully break and enter” the house in question. Appellant relies on Weatherred v. State (Tex. Cr. App.) 276 S. W. 436, but the facts im that case were different from those before us¡ We know of no well-considered case since the enactment of article 743, supra, wherein the facts showed an entry at night by breaking, which has been reversed for the giving of' this erroneous charge.

What we have just said applies equally to appellant’s complaint directed at. the-court’s definition of “force” as “any manipulation or effort employed to overcome any obstruction whatsoever.” We doubt the necessity of attempting to define force in a burglary case. The word is of common use and too well understood. “Breaking” is defined: fry the- statute as the use of the slightest force, such as raising a window, lifting a door latch, and, as; stated in many cases, “opening a closed door of a house.” The definition of force in the charge herein, under the facts of this case, could be of no injury, and would not call for a reversal. The error in the charge defining “nighttime” is of slight weight. • It states that by nighttime is meant any time within the 34 hours from 30 minutes after sunset until 30 minutes before sunrise. To be sure there exists no such length of time between 30 minutes after sunset and 30 minutes before sunrise, a-s 24' hours. The statutory expression in article 1810, Vernon’s Penal Code is a bit awkward. It is suggested that, in defining, daytime or nighttime in burglary cases, it- would be clearer to omit the words “24 hours.” Nighttime in burglary is any time from 30 minutes after sunset to 30 minutes before sunrise.

In asserting that this ease, in spite of the fact of appellant’s confession, should be held one of circumstantial evidence, appellant cites Early v. State, 97 S. W. 82, 50 Tex. Cr. R. 344. We are unable to find any analogy. In the case cited, the confession of the accused went no further than to show him one of the parties present at the place where the •homicide was committed. His participation in same was not admitted but combated. We ■held that the fact that there was a confession which went no further than it did, did not ■take the case out of the rule of circumstantial ¡evidence. 'In the ease before us, appellant •not .only admitted his presence, but his participation, Ms entry into the building that it was at night, that they went back to Cle-burne after they “burglarized the bank.”

There are other matters complained of, but, without burdening this opinion with them in detail, we have considered same and find no error in any of them. It was proper to detail the condition of the building the morning after the burglary, of the vault, the movements of the officers, the finding of secreted articles such as were apparently used in the effort to get into the vault, the watch kept of such articles, and the arrest of appellant and others at the place where same were hid, the night’ after the burglary. In his confession, appellant admitted going the next night after the burglary to where said articles were hidden to get them. He told what each member of his party furnished in the effort to burglarize the bank. Nor was there error in admitting evidence that at various times reasonably near to that of the burglary, various articles similar to those so had and found Vrnre missed from the Santa Eé shops where appellant worked. Proof of what appellant’s witness Stiles testified before the grand jury as to statements made by appellant to him in an effort to induce witness to go and aid appellant in robbing a bank was admissible to impeach Stiles. Objections to the argument •of state’s counsel were without merit.

Finding no error in the record, the judgment will be affirmed. .

On Motion for Rehearing.

Appellant now insists that there was no testimony of an entry at night into the alleged burglarized building. Referring to his'confession in evidence, we note that he says that he and his confederates left Cleburne “that night” about 11 o’clock and proceeded to Osceola, where the burglary occurred. He further states in said confession that, after the burglary, ‘.‘we * * * spent the remainder of the night at my house.” This is enough to show that the entry was at night:

Again it is insisted that, Patterson being only the bookkeeper and admitting that he was merely an employé of the bank, loaned' no money, etc., Mr. Edrington ran- the bank, etc., that the allegation of ownership in Patterson was not sustained by the proof. The rules as to alleging and proving ownersMp in burglary cases are the same as in theft eases. See article 457, Vernon’s O. C. P., and authorities cited. Ownership of a schoolhouse, claimed to have been burglarized' at night, was held properly láid in the janitor who had charge of the building from 4 p. m. to 8 a. m. Lamater v. State, 42 S. W. 304, 38 Tex. Cr. R. 249. One in possession of the property may, under appropriate circumstances, be alleged as its owner. Bell v. State. (Tex. Cr. App.) 71 S. W. 24; Piper v. State, 119 S. W., 869, 56 Tex. Cr. R. 121; Taylor v. State, 138 S. W. 615, 62 Tex. Cr. R., 611. If A owned a house and left the state, after asking B to look after it for him while he is away, and the house is burglarized, ownership should be laid in B, even though -he has it in his temporary custody. Davidson v. State, 216 S. W. 624, 86 Tex. Cr. R. 243. Burglarized building's belonging to_a corporation are sufficiently described as to ownership by alleging same in the person in possession. Guyon v. State, 230 S. W. 408, 89 Tex. Cr. R. 287; McGoldrick v. State, 89 Tex. Cr. R. 585, 232 S. W. 851. It is but a repetition for US to say that Ed-rington, the cashier of the bank, was out of the state at the time of the burglary, and that Patterson, the bookkeeper, was in charge of the bank building, and that ownership was properly laid in him;

There can be no question of the fact' that the house was entered by some character of force. It whs closed when Patterson left it 1 no broken walls were in evidence the next morning, though the interior of the building bore ample proof of the fact that some one had entered it. The court gave the statutory definition of breaking, and told the jury in appropriate language that, if from the evidence they believed appellant so entered said building with the intent to steal, they should convict. We are unable to bring ourselves to believe that appellant has not had that fair trial guaranteed to him. He has been ably defended, both, in the trial court and here, and we are not in accord with the matters contended for, and the motion for rehearing will be overruled. 
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