
    SMITH v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 15, 1911.
    Rehearing Denied March 15, 1911.)
    1. Criminal Daw (§ 517) — Confessions— Admissibility.
    A statement by accused, while under arrest for burglary, as to where personal property, stolen, from the house the night of the burglary, could be found, may be proved against him, if the truth of the statement ha's been ascertained by acting on the information.
    • [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1146-1156; Dec. Dig. § 517.]
    2. Criminal Daw (§ 1111) — Bill of Exceptions — Conclusiveness.
    Accused, who accepts a bill of exceptions as qualified by the trial judge in his approval thereof, is bound thereby.
    ■[Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 2894r-2896; Dec. Dig. § 1111.*]
    3. Criminal Daw. (§ 396) — Evidence— Admissibility.
    Where accused, on trial for burglary, proved on the examination of a witness that a third person had stated that he and accused committed the burglary, the state was properly permitted to prove the 'balance of the third person’s statement.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. § 862; Dec. Dig. § 396.]
    4. Criminal Daw (§ 773) — Evidence — Instructions.
    A charge, on a trial for burglary, that if the condition of accused’s mind was such that he did not know that it was wrong to enter the house and remove goods therefrom he was not guilty, presented the defense of insanity sufficiently favorably to accused, and it was not error to refuse to charge that unless accused, though he entered the house and took the goods, did not intend to appropriate the goods, he was not guilty, since, if he was sane, he was, under Pen. Code 1895, art. 51, presumed to have intended the probable consequences of his acts.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1821-1828; Dec. Dig. § 773.]
    5. Criminal Daw (§§ 763, 764) — Instructions — Weight of Evidence.
    A charge on the defense of insanity, which states under what circumstances the jury should acquit accused, if they found he did commit the act of burglary, was not erroneous as • on the weight of the -evidence.
    [Ed. Note. — Fdr other cases, see Criminal Daw, Dec. Dig. §§ 763, 764.]
    6. Criminal Daw (§ 761) — Instructions— Assumption of Facts.
    The charge was not erroneous as assuming the guilt of accused.
    [Ed. Note. — For other- cases, ‘ see Criminal Daw, Dee. Dig. § 761.]
    7. Burglary (§ 46) — Instructions—Issues— Evidence.
    Where, on a trial for burglary, the evidence showed that prosecutors were in the sole possession and control of the house burglarized, and no question was raised as to the actúa! ownership thereof, the refusal to direct an acquittal, unless the jury found.who actually owned the house, was proper.
    [Ed. Note. — For other cases, see Burglary, Dec. Dig. § 46.]
    8. Criminal Daw (§ 1159*) — Appeal—'Verdict— Conclusiveness.
    A verdict supported by evidence, and in accordance with the verdict of the jury on a former trial, will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Criminal Daw, .Cent. Dig. §§ 3074 — 30S3; Dec. Dig. § 1159.]
    Appeal from District Court, Wood County; R. W. Simpson, Judge.
    Pat Smith was convicted of burglary, and he appeals.
    Affirmed.
    See, also, 55 Tex. Cr. R. 563, 117 S. W. 966.
    Stafford & Geddie and Jones & Jones, for appellant. C. E. Dane, Asst. Atty. Gen., for the State.
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant appeals from a conviction of the offense of burglary; he being sentenced to two years’ confinement in the ■ state penitentiary from Wood county, Tex.

1. The facts proven would indicate that defendant and one Mart Everett were painting a roof of an adjoining store, and climbed by means of a ladder to the roof of the building that wás burglarized, and entered through the roof. When the appellant was arrested, he told the person who had him in charge where he would find two pistols that were stolen from the house the night of the burglary. Objection is made to the admissibility of this testimony, as the defendant was under arrest at the time he made .the statement. In Jackson v. State, 29 Tex. App. 463, 16 S. W. 248, it is said: “An exception to the rule that the confession of an unwarned defendant while in duress cannot be used in evidence against him is when, in connection with the confession, he makes a statement of facts and circumstances found to be true which conduce to establish his guilt. The facts thus stated by the' defendant must 'be known to him through his guilty participation in the crime, and the truth of the' same must be ascertained by means of* the information derived from the defendant.” Walker v. State, 2 Tex. App. 326; Allison v. State, 14 Tex. App. 122; Weller v. State, 16 Tex. App. 200; Brown v. State, 26 Tex. App. 308, 9 S. W. 613; Musgrave v. State, 28 Tex. App. 57, 11 S. W. 927.

Bills of exception were also reserved to the admissibility of the testimony of the witness Henry Speights. Had his testimony been originally elicited by the state, there is no question that it would be inadmissible. But when the defendant elicits a conversation in cross-examination, and brings out the objectionable testimony, and there is no objection offered to its admissibility until the state commences to inquire about the same conversation, a different question is presented: In approving the' bills of exception, the judge trying the cause states in his approval: “The attorney for defendant on a cross-examination of bis witness voluntarily went into the confession made by Mart Everett; the state in its direct examination having asked nothing about it. The statement of the’ witness that Mart told him that they, meaning he and defendant, went in the house, was in answer to a direct question by defendant’s counsel calling for the answer given, and no complaint or request was made until the district attorney on direct examination asked the question, ‘Did he say anything about having gotten any goods himself?’ and the witness answered, ‘He said they went in together.’ ” When a person accepts a bill as qualified by the judge in his approval of it, he is bound thereby. Jones v. State, 33 Tex. Cr. R. 7, 23 S. W. 793; Hardy v. State, 31 Tex. Cr. R. 289, 20 S. W. 561. But the bill itself shows that defendant elicited from the witness the same facts; the question asked by defendant’s counsel being, “Did you hear Mart Everett make any statement whether or not he has burglarized Brom-berg’s house?” to which he answered: “I heard him make a statement about the matter. He said they, meaning himself and defendant, went in together and got the goods.” The defendant offered no objection to the answer at the time. It had been in answer to a direct question asked by his counsel, and from an examination of the bill we find he made no further or additional statement affecting defendant in answer to any question propounded by state’s counsel on redirect examination. Having himself brought the matter out, and offering no objection at the time, he cannot be heard now to complain. In Underwood v. State, 55 Tex. Cr. R. 605, 117 S. W. 811, this court says: “We think that under the géneral rule that where a part of a conversation is admitted in evidence, all the conversation relating to the same matter should be admitted.” See, also, Spearman v. State, 34 Tex. Cr. R. 281, 30 S. W. 229; Speights v. State, 1 Tex. App. 553.

' 2. All of the special charges requested by appellant appear to have been given except No. 1. In this the court was requested to charge the jury that even though they found that defendant entered the house and took the goods, yet, unless they found beyond a reasonable doubt that he intended to appropriate said articles to his own .use and benefit, he would not be guilty. There is no evidence in the record calling for and demanding this charge, unless it was the plea of unsoundness of mind; and in presenting that phase of the case, this charge was in substance given, and the court gave defendant’s special charge No. 3, which told the jury “that, if the condition of the defendant’s mind was such that he did not know that it was wrong for him to enter said house and remove therefrom said articles of merchandise, you will find the defendant not guilty.” This presented the matter as favorably as defendant could expect; for, if he was sane, the intention to commit an offense is presumed whenever the means used are such as would ordinarily result in the commission of the forbidden act (P. O. 1895, art 51), and a man is always presumed to intend that which is the necessary, or. even probable, consequence of his acts. McCoy v. State, 25 Tex. 42, 78 Am. Dec. 520; Hatton v. State, 31 Tex. Cr. R. 586, 21 S. W. 679.

3. The criticisms of the court’s charge in the tenth, eleventh, and thirteenth grounds' of the motion for a new trial are not well taken. The charge on circumstantial evidence is very full and fair, and in accordance with precedents approved by this court. The charge on insanity, when taken as a whole, is not on the weight of the evidence, and does not assume that defendant is guilty of the offense. The jury is told the defendant is presumed to be innocent until his guilt is established, and if they have a reasonable doubt as to his guilt they will acquit him, and then follows a charge on defendant’s plea of insanity, in which they are instructed under what circumstances they should acquit him, “if they find he did commit the act of burglary.” The jury were instructed plainly that they must acquit the defendant, unless he was proven guilty beyond a reasonable doubt, and not be convicted even then, if he was of unsound mind.

4. There is no merit in the contention that the court should have instructed the jury to acquit, unless they found who actually owned the house. The evidence shows that Bromberg and Mayer were in sole ■ possession and control of the house burglarized. There was no question raised as to the actual ownership of the house in the trial of the case, no charge requested, and the court’s charge correctly presented the law.

5. The two other grounds relate solely to the sufficiency of the evidence, and it is insisted strongly that the evidence shows that defendant was insane at the time of the commission of the offense. This is the second appeal in this case, the former being reported in 55 Tex. Cr. R. 563, 117 S. W. 966. By reference to that opinion it will be seen this defense was made on the former trial also. Twice have juries passed on this question, and in both instances they find against appellant’s contention. They saw the witnesses. They heard their testimony. The judge properly submitted this question to them, and they in law are made the judges of the facts proven, the credibility of the witnesses, and the weight to be given their testimony, and we are not disposed to disturb their finding.

Finding no error in the record, the judgment is affirmed.  