
    WINN v. STATE.
    (No. 4720.)
    (Court of Criminal Appeals of Texas.
    Nov. 28, 1917.)
    Criminal Law &wkey;>784(l) — Instructions — CIRCUMSTANTIAL EVIDENCE — CONFESSION — Burglary.
    It is a case of circumstantial evidence, requiring a charge submitting that phase of the iaw, defendant in burglary having confessed not that he broke G.’s store, but merely that he had G.’s goods and got them from his store; the matter of breaking being only an inference to be drawn therefrom.
    Appeal from District Court, Kaufman County ; F. L. Hawkins, Judge.
    A. J. Winn was convicted, and appeals.
    Reversed and remanded.
    Lee R. Stroud, of Kaufman, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at two years’ confinement in the penitentiary. *

The record is without a statement of the facts. There is a bill of exceptions in the record which is so presented that we are of opinion it should be considered, though a statement of facts is not before the court. This hill is lengthy and recites that the court failed to submit the law applicable to a case of circumstantial evidence, and that appellant did not prepare nor request a special charge submitting this phase of the law, but excepted to the court’s charge because it did not so charge. The bill also recites that on account of the confession of the defendant the trial court was of the- opinion the law of circumstantial evidence was not applicable and should not be given. It is stated as a matter of fact, approved by the judge, that independent of the confession and but for the confession it was a case resting alone upon circumstantial evidence.

The facts, as recited by the bill, are that the owner of the shop or store, whose name is Gillis, had testified that he had possession of this house as a clothes-cleaning establishment and store, and that he gave appellant no permission to enter it; that on the close of the evening approaching the night of the date of the offense charged he locked the door of his shop or store and went home for the night. When he returned the next morning at the usual hour the shop or the store had been unlocked, and after entering the same the owner discovered that certain clothes were missing from the shop and had been taken by some one. This was without his consent, and, among other circumstances tending to show defendant’s guilt, there being no eyewitness to the breaking of the house or taking of the clothes, the state, through the witness Amie Godfrey, undertook t<J prove and did. prove certain confessions of appellant by questions and answers which are copied in the bill of exceptions. This brought in review a conversation between appellant and the witness two or three days before the alleged burglary of Gillis’ shop. In this conversation Godfrey states that appellant asked him if he did not want to make some money. Godfrey asked him how this was to be done and was informed that they would get some clothes. Witness asked him where, and he said here in Forn-ey, and witness asked him how would they get them, and appellant said they would steal them, and witness told him no he did not want to help him. A day or two prior to this conversation witness says he had a short conversation with appellant who came to him with a pair of pants and requested witness to let him leave the pants in his shoeshop. He asked appellant where he got them and was informed that he got them up at Dave’s shop-. The pants were stolen a day or two before that. Witness refused to let appellant leave the pants in his shoe-shop for fear they would come over and search his house, and if they found the pants they would swear he was the party who committed the theft. These pants were brown. This occurred before the alleged burglary. Subsequent to this burglary appellant again approached the witness, both of them being at that time in Dallas. He repeats the conversation in Dallas about as follows:

“He came to me and asked me did I want to help him sell the clothes. I asked him, ‘Where is they at?’ He says,‘Over here.’ I says, ‘Where did you get them?’ He says, T got them in Forney. Don’t you know whose clothes I was talking to you about?’ I says, ‘Ves.’ He says, ‘Well they are here; don’t you want to help me go and sell them?’ I said, ‘No; I had rather help steal them than to help sell them.’ Q. Did he tell you where in Forney he got them? A. He didn’t say after we were in Dallas where he got them, but he told me in Forney he was going to get them out of Dave’s shop. That is where he said they were located at. Q. Did he or did he not tell you that he got them at the same place he got the brown pants? A. Yes, sir; he did.”

Here there was some objection and a colloquy ensued, and finally the court remarked:

“Let the witness state just what the defendant told him before the burglary about where he was going to get the clothes.”

The witness answered:

“He came to me, it was two or three days before the burglary, with a pair of pants — he asked me to let him have— The Court: Leave off about those pants. I understood you to say something about some other clothes some time before the' burglary. A. No, sir; nothing but the pants. He came to me and asked me did I want to make some money. I asked him how. He says, ‘We will get some clothes.’ I says, ‘Where?’ He says¡ ‘Here in Eorney.’ I says, ‘Where are you going to. get them from?’ He says, ‘The same place that I got the pants from; and he told me that he got the pants from Dave Gillis’ shop. The Court: That makes it admissible.” *

The witness further stated after the burglary he had a conversation on Sunday evening with appellant with reference to the clothes. Witness says:

“He asked me did X still want to help him make way with them; he said he had done got them; got them at the same place he got the pants.”

Witness further testified he had another conversation with appellant in Dallas the following week about the clothes, and that appellant asked him if he did not want to help him sell them, and witness told him no. On cross-examination witness denied being related to appellant, but had known him a couple of years. He says they were never in business together, but would speak and go together; that they were not particular friends; just acquainted with each other; just had a speaking acquaintance. Witness says he is 21 years of age, and that appellant first came and told him he had stolen a pair of pants.

“Q. Hacb broken into a house and got them? A. Yes, sir. Q. Made very free to tell you that? A. Yes, sir; nobody was present when he told me that; can’t remember exactly the day; it was in the shoeshop. Q. He told you where he had broken in and got the pants? A. Yes, sir; he didn’t say he broke in, he said he got them there. Q. And then you refused to become a criminal with Mm? A. X refused to hide the pants there in my shop. I refused to go with him to get the clothes; that was after I refused to let him hide the pants there. .Yes; he kept on after me. Didn’t tell me exactly all. He just told me about the clothes; then afterwards told me he had got them; then afterwards tried to get me to help him sell the clothes in Dallas.”

The general rule is that where confessions are introduced it may relieve the case of being one of circumstantial evidence, but this is not always true. The confession must be' of such a nature that it directly connects the accused with the offense for which he is being tried. Confessions of incidental matters from which the main fact is to be deduced do not relieve the case of being one of circumstantial evidence. These cases are found collated in Mr. Branch’s Ann. P. C. at page 1294. There are quite a number of those cases. Mr. Branch states these rules very clearly and accurately. With reference to burglary he sums up the proposition as follows:

“The factum probandum of burglary, the main fact to be proved, is the breaking and entry, and if there is no direct evidence of the main fact a charge on circumstantial evidence is demanded. If the main fact is proved as a matter of inference from other facts in evidence, the, case rests wholly, in a legal sense, upon circumstantial evidence”

—rand cites a great number of cases. Again:

“In a burglary case if the main fact, the breaking and entry by defendant, is only to be inferred from the fact of subsequent possession of property recently stolen, it is a case of circumstantial evidence. Possession of property recently stolen is but a circumstance”

—citing in support of that proposition quite a number of cases. He also states another rule:

“Proof that the aecqsed pleaded guilty to theft of the same property involved in the burglary case does not relieve the court from charging on circumstantial evidence in the burglary case” —citing Beason v. State, 63 S. W. 633, and Beason v. State, 43 Tex. Cr. R. 442, 67 S. W. 96, 69 L. R. A. 193. Again he states:
“If it is only by a process of inference from the confession or admission of defendant that it can be determined that he was the party who made the burglarious entry or participated therein, the court in a case of burglary should charge the jury on circumstantial evidence.”

Another rule also well understood and correctly stated by Mr. Branch is:

“If a confession of defendant that he committed the burglary is in evidence a charge on circumstantial evidence is not demanded. A confession of the breaking and entry is direct evidence of the main inculpatory fact.”

In siupport ofi this proposition quite a number of cases are cited.

We are of opinion that these rules stated by Mr. Branch are correctly and forcefully stated and supported by the authorities. If in appellant’s confession he had directly stated that he broke and entered the house, the trial court would have been correct in refusing to charge upon circumstantial evidence, but as we understand this bill of exceptions such confession was not made. Summed up, this bill shows that a few days before the burglary appellant went to the witness Godfrey, who owned a shoeshop, and asked permission to leave a pair of pants in his (Godfrey’s) house or shoeshop. This was declined by Godfrey on the ground that the pants were stolen, coupled with fear of detection. Godfrey also stated further that appellant requested him to enter into an agreement with him to steal clothing, which was declined by Godfrey. These clothes were to be stolen in the town of Eorney. Some days later appellant and Godfrey were in Dallas together when appellant requested Godfrey to help him dispose of some goods that appellant admitted to him or informed him he had stolen, and had gotten same from the place where he had gotten the pair of pants previously mentioned. This Godfrey declined. When the matter was brought pointedly to the issue in his confession as to whether he broke Gillis’ store to get the goods, the witness states that appellant did not inform him that he broke the store, but says he got the clothes. From this statement of Godfrey as to appellant’s confession, we have no positive declaration that he broke Gillis’ store. It is a matter of inference from the statement in the confession that he had gotten Gillis’ goods and had them and wished Godfrey to assist him in disposing of them. From these statements the inference was to be drawn that appellant was connected with the breaking. It is not a direct or positive fact, but by reason of the fact that appellant had the goods and said he got them from Gillis’ store, the inference is to be deduced that he broke and entered the store. While this is a close question, yet the breaking of the store by appellant is a matter of inference and not a positive fact, and under the cases cited by Mr. Branch we are of opinion this is a case of circumstantial evidence which demanded a charge submitting that phase of the law. The Beason Oases, supra, seem to be almost directly, if not exactly, in point.

The court, in the bill of exceptions, signs the statement that, independent of these conversations between Godfrey and appellant, this is a case purely of circumstantial evidence, and if it is relieved of that attitude, then it is by reason of appellant’s statement to the witness Godfrey. We think the bill is sufficient to bring the question in review, and also that the recitals in the bill show that it was a case of circumstantial evidence. The rule is general that all issues of law must be submitted favorably to the ap'pellatLt. The presumption of innocence and the reasonable doubt obtain, and where there is a doubt of the facts, there is also a doubt of the law. In other words, wherever there is a doubt arising from the facts, the issues of the law must be favorably presented by the court for the consideration of the jury with reference to the facts. This is the well-settled law, and under our jurisprudence could not be otherwise. The humane rule laid down by the Legislature, fundamental in our jurisprudence, is that the accused is presumed innocent and the state must overcome this beyond a reasonable doubt. Not only the facts must overcome these presumptions, but the law must be submitted applicable thereto in order that the jury may correctly decide such issues. Exceptions should, of course, be duly saved in order to present errors pertaining to charges.

For the reasons indicated, the judgment will be reversed, and the cause remanded. 
      cg^pFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     