
    SODERS v. STATE.
    (No. 4479.)
    (Court of Criminal Appeals of Texas.
    May 23, 1917.
    Rehearing Denied June 20, 1917.)
    1. Burglary <&wkey;36 — Evidence—Admissibility.
    In prosecution for burglarizing a saloon, testimony that whisky was found outside of the saloon after it was broken open was admissible, when the whisky was found while defendant was present.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 90.]
    2. Criminal Law <&wkey;814(17) — Instructions— Circumstantial Evidence.
    Evidence held, to bring one accused of burglary in such juxtaposition to the offense as to render unnecessary instruction upon circumstantial evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883, 1979.]
    3. Burglary &wkey;>2 — Elements oe Offense.
    One who by force in the nighttime breaks and enters the house of another with intent to commit a theft therein is guilty of burglary.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 1-3.
    For other definitions, see Words and Phrases, First and Second Series, Burglary.]
    Appeal from Criminal District Court, Williamson County; George Calhoun, Judge.
    John Soders was convicted of burglary, and appeals.
    Affirmed.
    Melasky & Moody, of Taylor, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appellant, John Soders, Henry Soders, his brother, George Langston, and another, called “Army,” were charged in the same indictment with the offense of burglary. Henry Soders and “Army” were acquitted, George Langston was convicted and his sentence suspended, and John Soders was convicted and his punishment assessed at two years’ confinement in the penitentiary, from which this appeal is prosecuted by him.

The theory of the state was that appellant broke into the saloon of August Young, which was situated in the village of Sandoval. The facts show that Young closed his saloon, fastening all the doors, and went to his home about 9:30 at night; that about midnight a deputy sheriff living near the saloon saw two men pass his residence going in the direction of the saloon, and shortly after saw two others going in the same direction, and in a little while heard a disturbance—noise —at the saloon, whereupon he picked up his pistol and ran to the saloon, and as he turned the corner of the house he met the defendant Langston coming towards him, and on his refusal to stop the officer knocked him down with his pistol and dragged him with him to the door of the saloon. Looking in, he saw and recognized appellant, ■with whom he was well acquainted, stooping down in the saloon, apparently undertaking to pick something up, as the officer thought, to strike him with. At that moment his prisoner made a demonstration, which caused the officer to turn his head, and as he turned it back a man ran out of the door of the saloon and through the fence and away. It was found that the house had been broken open, and that there were bottles of whisky out in a road and near the door of the saloon, outside thereof, and some near the fence, where the man who ran away went through it.

Appellant claimed that he and the other parties named in the indictment had been in the saloon before it closed, and that they went down on the creek near the village, and that a gambling game was indulged in by the others, though he did not participate, that when they left the creek he and the defendant “Army” went home together in a buggy, and that he did not go to the saloon nor have any part in the burglary. His brother, Henry Soders, who had been acquitted of the offense, corroborated him in part, testifying that John Soders and “Army” got in the buggy together and drove off.

Appellant complains of the fact that over his objection proof was made that whis-ky was found outside of the saloon, claiming that this testimony was not admissible; the whisky not being identified as having been taken out of the saloon. This was essentially a part of the transaction at which appellant was present and in which he participated as indicated by the evidence. Kubacak v. State, 59 Tex. Cr. R. 166, 127 S. W. 836; Moray v. State, 65 Tex. Cr. R. 504, 145 S. W. 927.

Complaint is made of the failure to charge the jury on the law of circumstantial evidence. The facts bring the appellant in such close juxtaposition to the breaking and entering as to render a charge on circumstantial evidence unnecessary. Montgomery v. State, 55 Tex. Cr. R. 504, 116 S. W. 1160; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Smith v. State, 90 S. W. 638; Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Branch’s Ann. P. C. p. 1295.

Appellant criticizes the seventh paragraph of the court’s charge as follows:

_ “Now, bearing in mind the foregoing definitions and instructions, if you believe from the evidence in this case, beyond a reasonable doubt, that the defendant John Soders, at any time within five years next before the filing of the indictment herein, in the county of Williamson and state of Texas, by force in the nighttime did break and enter the house of one August Young as charged in the indictment, with intent to commit the crime of theft, you will find the defendant guilty of the crime of burglary, and assess his punishment at imprisonment in the penitentiary not less than two nor more than twelve years. But, unless you- do so find the facts to be beyond a reasonable doubt, you will acquit the defendant and say by your verdict not guilty.”

He requested a special instruction covering the same subject. We do not think that the paragraph quoted is incorrect, nor materially different from the special charge requested.

We have reviewed all the various assignments, and in our judgment they do not show any legal reason for reversal; and it is therefore ordered that the judgment of the lower court be affirmed. 
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