
    SIFUENTES et al. v. STATE.
    (No. 11546.)
    Court of Criminal Appeals of Texas.
    March 7, 1928.
    Rehearing Denied April 18, 1928.
    1. Criminal law <⅞=>1169(3) — Defendant, testifying to same facts as officer, cannot claim officer’s testimony was erroneously admitted, because based on illegal search.
    In prosecution for burglary, defendant, who testified to same facts as stated by officer concerning what took place at search of automobile, cannot claim that testimony of officer was improperly admitted, because based on illegal search.
    2. Burglary <§=»45 — Burglary ease held for jury, under evidence showing stolen good.s found in defendant’s car.
    Evidence showing that goods stolen from store were found in defendant’s car. on night of burglary held sufficient to take case to jury in prosecution for burglary.
    3. Criminal law <S=>814(1) — Refusing charge on probable cause is not error, in case where validity of search is of no moment.
    In prosecution for burglary, refusal to charge on probable cause was not error, where question of validity of search was of no moment.
    Appeal from District Court, Coleman County; J. O. Woodward, Judge.
    -Tomas Sifuentes and another were convicted of burglary, and they appeal.
    Affirmed.
    Newman & McCollum, of Brady, for appellants.
    W. U. Early, Dist. Atty., of Brownwood, Critz & Woodward, of Coleman, and A. A. Dawson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for burglary; punishment, three years in the penitentiary.

A store in Santa Anna, in Coleman county, was burglarized on the night of the 17th of August, 1927: The burglary was discovered about 1 o’clock that night, ’ and officers of adjacent counties were communicated with at once and notified to look out for the burglars. Eater in the night the sheriff of Mc-Culloch county arrested appellants in a car a few miles out from Brady. In the car was found a large quantity of the goods taken from the burglarized store, some $1,200 worth of dry goods. Appellants defended on the theory that some other man employed them to carry the goods for him to a point beyond Brady.

Appellants’ bills of exceptions Nos. 1. 2, 8, 4, 8, and 9 relate to various things resulting from the admission of testimony of the sheriff and a deputy sheriff as to what they found in the car driven by appellants on the night in question. We are not in accord with the proposition advanced that the officers did not have the right to search the car in question under the facts appearing before us, but forego a discussion of these facts and the law applicable, in view of the fact that appellant Gonzalez took.the stand in his own behalf, and without objection fully admitted their possession of the car and of the goods, and the facts stated by the officers to be the result of their search of said car. The principle of law applicable is fully discussed in Gonzales v. State (Tex. Cr. App.) 299 S. W. 901, Frey v. State (Tex. Cr. App.) 3 S.W.(2d) 459, and Bonilla v. State (Tex. Cr. App.) 2 S.W.(2d) 248, opinions handed down on January 25, 1928, and McLaughlin v. State, No. 11286 (Tex. Cr. App.) 4 S. W. (2d) 54, opinion handed down February 15, 1928, which latter cases- have not yet been [officially] reported. The last case mentioned cites many authorities, beginning with Wagner v. State, 53 Tex. Cr. R. 306, 109 S. W. 169. We regard it as well settled that a complaint is without merit which attacks the admission Of testimony, in a case in which the record shows that the same testimony was otherwise introduced by the accused himself, or some other witness, without objection.

Appellants’ bill of exceptions No. 5 complains of the refusal of an instructed verdict, and is without merit. Each of the complaints set up in the other bills of exceptions has been examined, and are of matters deemed by us of no materiality under the facts in this case. Manifestly the court would be guilty of no error in refusing to charge on probable cause in a case in which the question of the validity of the search becomes of no moment, as in this case. We regard the court’s charge as fully presenting the affirmative defense, and that no error appears in the refusal of the special charge, presenting same in.a little different way.

No error appearing, the judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant questions only the application of the principle stated in McLaughlin v. State (No. 11286) supra, to the facts of the present case. Motion for rehearing in McLaughlin’s Case was overruled on April 4th; hence has not yet found its way into the reports, but many authorities were reviewed, and we think the proposition of law therein stated is amply supported. In the recent ease of Kelsey v. State (No. 11188, Tex. Cr. App., decided March 21, 1928) 4 S. W. (2d) 548, and King v. State (No. 11193, Tex. Cr. App., decided March 28, 1928) 4 S. W. (2d) 550, will-be found facts which prevented application of the rule recognized in McLaughlin’s Case. We do not understand, the facts in the present record make application of that rule improper. The criminative fact testified to by the officers was as to finding the alleged stolen property in appellant’s car. Appellant Gonzales in his testimony admitted possession of the car and of the property shown to have been stolen. Thus appellant placed before the jury the criminative fact which he insists should have been excluded as coming from the officers. Nothing in the opinion can be construed as in any way impinging upon appellant’s right to explain how he came in possession of the stolen property, the jury simply declined to give credence to the explanation.

The motion for rehearing is overruled. 
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