
    ROWLETT v. STATE.
    (No. 3859.)
    (Court of Criminal Appeals of Texas.
    Dec. 8, 1915.)
    1. Indictment and Information <&wkey;132 — Trial — Election between Counts.
    Where the court submitted to the jury only the first count of an indictment charging the breaking and entering of a house, not submitting a second count charging a nighttime burglary of a private residence, the action was tantamount to an election by the state.
    [Ed. Note. — Por other cases, see Indictment and Information, Cent. Dig. §§ 425-447, 449-453 ; Dec. Dig. &wkey;132.]
    2. Criminal Law <&^>1165 — Appeai>-Haemless Error — Submission of Count.
    On a trial for burglary, where the testimony was doubtful as to whether the house was burglarized in the daytime or at night, though the testimony would have warranted the court in submitting to the jury both counts of the indictment, the first charging that accused broke and entered a house, and the second charging a nighttime burglary of a private residence, no objection being made to the charge before the first count alone was submitted to the jury, defendant had no just ground of complaint.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3085, 3086, 3088, 3089; Dee. Dig. <&wkey;>1165.]
    3. Criminal Law <&wkey;1091 — Appeal — Bills of Exception.
    Bills of exception to the overruling of defendant's motion for new trial, and to the refusal to instruct a verdict, setting out no facts, but simply reciting that defendant excepted to the action of the court, presented nothing for review.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. §§ 2803, 2815, 2816, 2818, 2819, 2823, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. <&wkey;>1091.]
    4. Criminal Law <&wkey;1160 — Conviction—Support by Proof.
    Where the evidence showed without controversy that a house was broken and entered, and a piece of jewelry stolen, which, on the next day, was pawned by one whom the pawnbroker positively identified as defendant, a conviction of burglary will be sustained on appeal where the finding has been approved by the trial judge.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. § 3084; Dec, Dig. <S&wkey;1160.]
    5. Criminal Law (&wkey;652 — Trial—Identification of Defendant.
    In a prosecution for burglary, there was no error in the court’s failing to place defendant among other men for identification by a pawn
      broker, so that the latter might be required to pick out the defendant and identify him among other persons, the discretion of the court controlling in such matters.
    [Ed. Note. — Eor other cases, see Criminal Raw, Cent. Dig. § 873; Dec. Dig. <&wkey;652.]
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    James A. Rowlett was convicted of burglary, and lie appeals.
    Affirmed.
    John H. Crooker, Criminal Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Appellant was indicted for burglary under the name of Tom Jones, and on the trial suggested his true name as James A. Rowlett, and at his suggestion his name in the indictment was so changed, and the trial resulted in a verdict of guilty assessing his punishment at three years in the penitentiary, and from the judgment thereon he appeals.

The indictment contained two counts charging the same transaction, the first being for an ordinary burglary, alleging that the accused “did break and enter’ a house, and the second count charging a nighttime burglary of a private residence. The court gave appellant the benefit of the doubt under the testimony, and submitted only the first count, and, under the well-settled holdings of this court, this was tantamount to an election by the state; and, as said in Hopkins v. State, 61 Tex. Cr. R. 596, 135 S. W. 553, this was to the advantage of the accused. The testimony was doubtful as to when the house was burglarized, whether in the daytime or at night; the alleged owner not being present when the property was missed, and his wife having missed the property for the first time between 8 and 9' o’clock, possibly a little before 8 in the morning. It is true that it appears tliat the testimony also would have warranted the court in submitting both counts to the jury, but no objection was made to the charge before the case went to the jury; and as there was testimony to support the count submitted, and that count was favorable to the accused, he has no just ground of complaint. Perhaps the only difference in the result had the court submitted both counts would have been to cause the appellant to receive a more severe punishment. The burglary of a private residence in the daytime is on the same basis as an ordinary burglary; and hence there is nothing in appellant’s motion for new trial or his bill of exceptions that would warrant a reversal on this account. Appellant has a bill of exceptions taken to the overruling of his motion for new trial and to the refusal to order an instructed verdict. These bills set out no facts, but simply recite that appellant excepted to such action of the court, and of course, present nothing to review.

Appellant claims that the evidence is insufficient to support the verdict. It is unnecessary to state all the testimony. The proof shows, without controversy, that the house of the alleged injured party was broken and entered and a piece of jewelry known as a “lavalliere” was taken, which on the day after was pawned in a pawnshop in the city of Houston by appellant. The pawnbroker positively identified appellant as the party who pawned the stolen property.

Appellant neither testified nor introduced any testimony. It is well settled by the authorities that, in a case of burglary, if the state proves that a burglary as alleged was committed by some one, and, based on proof that the accused was found in possession of property recently stolen from the burglarized house, the jury have found him guilty of the burglary, and that finding has been approved by the trial judge, whose duty it is to set the conviction aside if not satisfied that he is guilty as charged, the judgment will be sustained on appeal unless clearly wrong. Payne v. State, 21 Tex. App. 184, 17 S. W. 463; Rust v. State, 31 Tex. Cr. R. 75, 19 S. W. 763; Roberts v. State, 60 Tex. Cr. R. 23. 129 S. W. 611; Spencer v. State, 61 Tex. Cr. R. 60, 133 S. W. 1049; Wilson v. State, 71 Tex. Cr. R. 330, 158 S. W. 1114; Powers v. State, 72 Tex. Cr. R. 290, 162 S. W. 832; Lewis v. State, 72 Tex. Cr. R. 377, 162 S. W. 866; O’Fallin v. State, 169 S. W. 897; Hamilton v. State, 177 S. W. 496.

The only other ground presented by appellant is that the court erred in not having him placed among other men, so that the pawnbroker might be required to “pick out the defendant and identify him among other persons.” We know of no rule of law requiring this to be done, and, in the absence of a showing of an abuse of the sound discretion of the court necessarily confided to him in such matters, the judgment cannot be reversed on this account. The pawnbroker was positive in his identification and without any interest in the matter, nor did he display any, and the weight to be given to his testimony was for the jury.

The judgment is affirmed. 
      <&wkey;Eor other oases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes
     