
    McGOLDRICK v. STATE.
    (No. 6365.)
    (Court of Criminal Appeals of Texas.
    June 22, 1921.)
    1.Burglary ©=»28(6) — Evidence held not inconsistent with averment of ownership.
    In a prosecution for burglary, evidence held not inconsistent with averment of ownership of stolen property.
    2. Burglary 3fc=>7 — Allegation and proof of ownership of stolen partnership property by either partner sufficient.
    In a prosecution for burglary, allegation and proof of ownership of partnership property by either partner is sufficient.
    3. Burglary <3==>4I(8) — Witness’ testimony that ■ he was vice president of concern from which property stolen does not show same owned by corporation. .
    In a prosecution for burglary, a witness’ testimony'that he was vice president of the concern from which the property was stolen did not show that it was owned by a corporation.
    4. Burglary <®=>23 — Sufficient to name individual in possession of stolen corporation property as owner.
    In a prosecution for burglary, though the real ownership of the stolen property is in a corporatioh, if possession is in an individual, it is sufficient to name him as the owner.
    5. Criminal law <⅜=>364(4), 368(3) — Testimony of arresting officer as to defendant’s confession and his discovery of stolen property admissible if res gestee.
    In a prosecution for burglary, testimony of the arresting officer that defendant confessed, while under arrest, that he entered the house, took out the articles, and was hauling them off on a bicycle when arrested, and that he told him where the bicycle was, whereupon the witness found one of the stolen articles in a box tied to the bicycle, if res gestae, was admissible.
    6. Criminal law <@=ol 141 (2) — Appellant must show confession while under arrest not admissible as res gestse.
    On appeal from a conviction for burglary, the burden was on appellant to show by his bill of exceptions that testimony of the arresting officer as to the discovery of the stolen property and appellant’s confession while under ar-. rest was not admissible as res geste.
    7. Criminal law <@==>1141 (2) — That testimony defendant was in possession of stolen property was res geste may be inferred from expression in bill of exceptions that he was hauling off property when, arrested.
    On appeal from a conviction for burglary, it may be inferred from an expression in the bill of exceptions that defendant was hauling off the property on his bicycle when arrested, that the arresting officer’s testimony that defendant, immediately after his arrest, was in possession of part of the stolen property, and that he learned from him the location of the bicycle and found tied to it a box containing another article stolen, was res geste, though it did not appear that defendant was with the officer at the time.
    Appeal from District Court, Bexar County; W. S. Anderson, judge.
    Marshall McGoldrick was convicted of burglary, and he appeals.
    Affirmed.
    R. H. Hamilton, Asst. Atty. Gen., for the State. '
   MORROW, P. J.

The conviction is for burglary. Punishment fixed at confinement in the penitentiary for two years.

The ownership of the premises was laid in IX. G. Wharton. He testified that his plumbing establishment was burglarized on the morning of the 10th of January; that he found in the possession of Officer Kilday certain property, including a kitchen sink and a shower attachment which he identified as part of the stolen property.

Kilday testified that he arrested the appellant and found in his possession the kitchen sink and some other articles; that at the time of the arrest appellant “confessed that he had gone into Kirkwood & Wharton’s place and took a kitchen sink out of there, a patented shower head for a bath, and he told me where his bicycle was. I went to a point back of Kirkwood & Wharton’s and found his bicycle, and there was tied to it a box containing the patented shower head.”

Another officer, Staines, testified that he was a night watchman in the locality where Kirkwood & Wharton’s place of business was situated; that he went around the corner of the yard and saw the appellant standing with a large package; that he said to the appellant, “Come on out to the sidewalk,” and he did not want to go there, and he wanted to get his bicycle.

A witness by the name of Ives testified that he was vice president of Kirkwood & Wharton’s; that'in his opinion he was the first one on the premises after the burglary; that he opened the place each morning, and upon the occasion in question he found the back door open about 6:30 in the morning.

The conviction is attacked upon two grounds: First, that there was a variance between the allegation and proof of ownership ; second, that the admission of the testimony of Officer Kilday was in violation of the statute regulating the introduction of evidence of confession of one under arrest.

On the matter of ownership, we regard the appellant’s position as unsound. The evidence, substantially all of which we have quoted, is not inconsistent with the averment naming Wharton as the owner. The suggestion that it belonged to a partnership would not sustain the claim of variance, because in such case the allegation and proof of ownership of either partner was sufficient. Code of Crim. Proc. art. 457; Coats v. State, 31 Tex. Cr. R. 257, 20 S. W. 585; Davis v. State, 63 Tex. Cr. R. 454, 140 S. W. 349; Branch’s Ann. Penal Code, § 2434. The testimony of Ives that he was vice president does not show that the property was owned by a corporation, but, if the contrary were true, Wharton being in possession of the property, the allegation of ownership in him was appropriate: If the real ownership of property be in a corporation, but the property in the possession of an individual — that is, under his care, control, and management —it will satisfy the law to name him as the owner. Bailey v. State, 18 Tex. App. 426; Branch’s Ann. Penal Code, p. 1325, and cases listed; Guyon v. State, 230 S. W. 408.

Concerning the confession, the bill of exceptions discloses that in the absence of the jury inquiry was made of the witness Kilday, and that he gave testimony to the effect that while under arrest appellant said he entered the house, took out the articles, and “was hauling it off on the bicycle when arrested.” Upon the return of the jury the witness gave before them this testimony:

“MeGoldrick, after being questioned a while, confessed he had gone into Kirkwood & Wharton’s place and took a kitchen sink out of there, a patented shower head for a bath, and he told me where his bicycle was.”
“I went over on Crockett street back of the fence of Kirkwood & Wharton’s, and there I found his bicycle, and tied to this was a box which contained the patent shower head.”

Whether this was res geste is not disclosed by the bill. If res gestee, it was admissible. Moore v. State, 46 Tex. Cr. R. 58, 79 S. W. 565; Koller v. State, 36 Tex. Cr. R. 498, 38 S. W. 44; Branch’s Ann. Penal Code, § 83. To show error, it was appellant’s burden, by his bill, to show that it was not admissible. Manning v. State, 51 Tex. Cr. R. 214, 98 S. W. 251. From Kilday’s testimony it appears that he saw the appellant immediately after his arrest and while he was in possession of a part of the stolen property; that he learned from him the location of the bicycle, and found the bicycle to which was tied the box containing other articles stolen from the premises described ins the indictment. Whether the appellant was with him at the time does not definitely appear, but from the expression in the bill that he was “hauling off the property on his bicycle when arrested” the inference might be drawn that the evidence adduced was res geste. We do not wish to intimate that, even if it were not res geste, it would be inadmissiblé. As to that it is unnecessary to express an opinion; suffice it to say that the bill of exceptions fails to show error in its admission.

Finding no error warranting a reversal, the judgment is affirmed. 
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