
    RIPPEY v. STATE.
    (No. 5555.)
    (Court of Criminal Appeals of Texas.
    Jan. 21, 1920.
    On Motion for Rehearing, March 17, 1920.)
    1. Burglary <@=334 — Testimony that sausage MEAT FOUND IN DEFENDANT'S POSSESSION WAS OWNER’S ADMISSIBLE.
    In a prosecution for burglary of a county poor farm, defendant being charged with having stolen hams and sausage meat, testimony of the superintendent of the farm, after examining in the presence of the jury the sausage meat found m defendant’s house, that it was his and had every appearance of the sausage meat taken from his meat house, etc., was admissible.
    2. Criminal law <§=>1091(2) — Bill of exceptions MUST EXHIBIT FACTS SHOWING ERROR COMPLAINED of.
    A bill of exceptions must be complete within itself, and exhibit such facts as will show the error complained of.
    3. Criminal law <§=3775(2) — Charge on ALIBI NOT CALLED FOR BY DEFENDANT’S DENIAL OF GUILT.
    The mere fact that defendant denied her guilt of burglary of a county poor farm, and stated she was not at the farm after a certain date about a month before the alleged burglary, did not necessarily wairant a charge on alibi, where she did not attempt to state where she was on the date of the burglary, nor show such fact by any evidence.
    4. Criminal law <§=>792(2) — Submission of LAW OF PRINCIPALS HELD PROPER IN VIEW OF TESTIMONY.
    In a prosecution for burglary, certain hams and sausage meats stolen having been found in defendant’s possession, in view of ¿testimony as to the presence of one other than defendant and his participation in whatever was done by her in connection with the burglary, the trial court properly submitted the law of principals as applied to such other defendant.
    5. Burglary ,<§=>9(1) — Entry by use of KEYS BURGLARIOUS.
    The use of keys to enter a building is the use of sufficient force 'as applied to it to constitute burglary.
    On Motion for Eehearing.
    6. Criminal law <§=>393(1), 395 — Testimony THAT STOLEN MEAT WAS FOUND AT DEFENDANT’S HOUSE ADMISSIBLE.
    In a prosecution for burglary, 'defendant being charged with having stolen hams and sausage meat, testimony as to the finding of ■ the meat at defendant’s house in her absence when search was made after her arrest without -her consent, was admissible despite Bill of Bights, §§ 9, 10, guaranteeing citizens against unreasonable searches and seizures, and against being compelled to give evidence against themselves, also despite Const. U. S. Amends. 4 and 5; controversy as to identity of property going only to weight of evidence.
    7. Searches and seizures <§=>7 — Entry of HOUSE TO SEARCH FOR STOLEN PROPERTY NOT UNREASONABLE.
    It is permissible to enter a house to search for and seize stolen property, such action not being an unreasonable search or seizure, though, when such entry is over objection, it can be allowed only when in accordance with prescribed forms, such as search warrants, etc.
    8. Criminal law <§=>395 — Objects found on defendant’s person admissible in evidence.
    One arrested and searched may not complain that what was found on his person was used in evidence against him.
    9. Burglary <@=338 — Property stolen and FOUND IN DEFENDANT’S POSSESSION ADMISSIBLE.
    In a prosecution for burglary, property recently stolen and found in defendant’s possession is admissible against him regardless of whether he was or was not under arrest when the same was found.
    10. Criminal law <§=>40S(1) — Witnesses <§=> 300 — Statements of defendant under arrest AND CORRESPONDENCE OF TRACKS WITH OTHERS ADMISSIBLE.
    Statements of defendant while under arrest which are found to be true and which. aid in establishing his guilt are admissible against him, and while under arrest defendant may be compelled to place his feet in certain tracks, or his shoe may be removed from ins toot ana placed in certain tracks, for identification.
    11. Burglary <§=>41(1) — Evidence held to SUPPORT CONVICTION OF BURGLARY OF POOR FARM.
    In a prosecution for burglary of a county poor farm, defendant being charged with having stolen certain hams and sausage meat, evidence held sufficient to sustain conviction.
    12. Burglary <@=29 — Defendant need not BE SHOWN TO HAVE TAKEN ALL MISSING PROPERTY.
    To convict of burglary it is not necessary to show that defendant took all of the property missing from the broken premises.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Edna Bippey was convicted of burglary, and she appeals.
    Affirmed.
    Veale & Bumpkin and L. C. Barrett, all of Amarillo, for appellant.
    Alvin M. Owsley, Asst. Átty. Gen., for the State. •
   LATTIMOBE, J.

Appellant seeks to secure the reversal of a conviction in the district. court of Potter county, Tex., for the offense of burglary; her punishment being fixed at two years’ confinement in the penitentiary.

It appears from the record that one J. W. Cantrell was superintendent of the county poor farm of Potter county in 1918 and 1919, and as such had the care, control, and management of the buildings and property there located. It further appears that appellant was an inmate of said poor farm during the year 1918, and that in December of said year, and during her stay, some 13 hogs were killed by Cantrell, and the shoulders and hams salted down, and certain pure hog-meat sausage was ground, sacked, and hung up by him in the meat house. The whereabouts of the keys to the said meat house were shown to have-been known to appellant. Afterward, certain of the hams, shoulders, and sausage having disappeared, the finger of suspicion was pointed at appellant, and also one Richard Fitzgerald, commonly called Dick Fitzgerald, who seems to have occupied the same dwelling as appellant, and they were arrested; and, without a writ from any court, or any permit from appellant, search was made of the house inhabited by Edna Rippey and said Fitzgerald, which resulted in finding therein certain sausage in a certain sack which was tied at the end with a certain knot. On this trial Mr. Cantrell identified with more or less certainty the sausage and the sack or cloth, and especially the knot, as being his property which, together with four hams and two shoulders, had been surreptitiously taken from said meat house without his knowledge and consent.

One Hollobaugh testified for the state that some time in January or February, 1919, he had breakfast at the house with appellant and Fitzgerald and one Claude Blackburn, who was staying at said house; that appellant made the biscuit, and Fitzgerald fried the ham and eggs which formed a part of said breakfast; that in a conversation had at the time Blackburn asked appellant if the hams were all eaten, and she said they were not, but that, when they were, she knew where there were plenty more, and where the keys were kept, and then she told about her and Dick going to the county farm, and how she went and got the keys and got the meat and took it out to the buggy, and how she heard a noise and thought Mr. Cantrell was shooting at her and ran, but Dick called her back and told her it was only a horse making a racket at the barn.

Miss Given, for the state, testified that about January 25, 1919, appellant and Dick Fitzgerald took dinner at her father’s house, and some time while there Dick said that appellant was a good runner, or a race horse, or something of that kind, and they, referring to appellant and Fitzgerald, then told of being somewhere in the country, the exact place being undisclosed, and that they were getting some hams, and heard a horse kick, upon which appellant got scared and ran and dropped the hams, and, as witness thought, Dick went and got them. This witness did not think anything especially of the statement at the time, and did not gather therefrom that the parties had been out stealing hams.

One Blackburn swore that in February, 1919, he went to live at appellant’s house, and that he saw some country hams there; that appellant told him that she and Dick Fitzgerald had gotten them from the county farm. She did not say whether they had gotten them in the daytime or at night. She told him that she heard a horse kicking, and dropped the hams and ran. Both Fitzgerald and appellant told him about their going out to the farm and getting these things.

Both Blackburn and Hollobaugh admitted that they were under indictment for felonies.

For the appellant she was her own and only witness. She testified that she was at the county farm when the meat was put up, and helped with it, and knew where the keys were kept, but denied taking any of the meat, and specifically denied the statements attributed to her by the other witnesses, and denied being at the county farm at any time after December 13, 1918. She admitted that there were hams and sausage at her house, but denied knowing whence they came, except she said that Blackburn told her that Hollobaugh had brought some there.

We have given practically all the material evidence in the case.

Appellant objected to the testimony as to finding the sausage at her house, because the same was found in her absence, and the search was made without her consent, and, as she claims, in violation of law. The objection is without merit. The doctrine of res acta inter alios has no application. The finding of stolen property in the house or on the premiseg of one accused of their theft is material and admissible, and the fact that at the time the property was found such accused was absent, and had given no permission to make the search, would be immaterial. Nor would the fact that there might be some controversy as to the identity of the property affect the question of its admissibility; same could only go to its weight.

We can see no error in permitting the witness Cantrell to examine in the presence of the jury the sausage found in appellant’s house, and also to testify that it was his, and had every appearance of the sausage taken from his meat house. He described the kind of cloth used in making the sacks in which the sausage was placed, and also particularly described the knot which he tied in the end of each sack; the sausage exhibited to the jury being in the kind of cloth identified by him, and being tied with said knots.

Appellant has a bill of exceptions to the question asked her while on the witness stand as to how Dick Fitzgerald earned his living while he stayed with her, to which the witness answered over objection, “I do not know.” There might be many conceivable situations in which said question might be very material. The bill reserved thereto wholly fails to disclose the surrounding facts, or to set forth any reason why the overruling of the objection to said evidence was erroneous. It is well settled that a hill of exceptions must be complete within itself, and must exhibit such facts as will show the error complained of.

The court did not err in refusing appellant’s request for a peremptory instruction of not guilty; nor do we think any special defense of alibi was relied on or supported by any proof. The mere fact that the accused denied her guilt, and stated that she was not at the county farm after December 13th, would not necessarily warrant a charge on alibi. She did not attempt to state where she was on the date of the alleged burglary on January 14, 1919, nor to show such fact by any evidence whatever. Neither was any special charge asked presenting this theory-to the jury. Crane v. State, 57 Tex. Cr. R. 476, 123 S. W. 422; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345; Woods v. State, 80 Tex. Cr. R. 73, 188 S. W. 980.

The testimony of both Blackburn and Hollobaugh showed, if true,' the presence of Dick Fitzgerald and his participation in whatever was done by appellant in connection with said burglary; also the sausage claimed by the state to have been taken from the burglarized house was found in the building occupied by both appellant and said Fitzgerald, and we do not think the court erred in submitting the law of principals as applied to said Fitzgerald and appellant.

None of the other matters complained of present any question which seems to call for any discussion, except that it is urged the evidence does not make out a case of burglary against appellant. Having already set out at sufficient length the evidence, we will not further reproduce same. Appellant admits in her brief that, if the witness Hollobaugh can be believed, the case against her is made out. The trial court submitted the question to the jury as to whether this witness was an accomplice, and no serious objection was made to said charge. It is not claimed that Miss Given was an accomplice or in any way connected with the alleged crime. Her testimony and that of Mr. Cantrell amply corroborate that of the accomplices. Nor is there any doubt in the record but that the entry, if any, was made by the use of the keys, which would be the use of sufficient force, as applied to the building, to constitute burglary under our laws.

Finding no error in the record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant flies a vigorous motion for rehearing, attacking, in the first instance, that part of our opinion wherein we upheld the right of the state to introduce evidence that certain sausage, identified as being taken from the alleged burglarized house, was found in the house of appellant while she was absent; it being urged that the search of her house was without her consent, and without authority of law, and that therefore said evidence was inadmissible. That we may be more clearly understood, we will state that, when the owner of the alleged stolen property was on the witness stand and had testified to the loss of certain meat, he was asked by the state whether or not he had searched the premises of Mrs. Rippey for his missing hams, shoulders, and sausage. Baying her predicate for objection, appellant had him state that, when such search was made, she was not present, and that he did not have a search warrant, and that appellant had been arrested the night before, and was then in jail. Thereupon she objected to the question and its answer because the same would be hearsay, and because such search took place in her absence, and further because it would be compelling her to furnish testimony against herself, and same was not obtained in a legal manner. These objections the court overruled, and the witness testified to finding in appellant’s house certain sausage incased in a certain kind of cloth covering, tied with a certain knot, all of which witness thought was his property and a knot tied by himself. As presented before this court, appellant urges that such evidence was inadmissible, because said sausage was obtained in violation of sections 9 and 10 of our Bill of Rights, which guarantee to our citizens security against unreasonable searches and seizures, and also guarantee against being compelled to give evidence against themselves, and further appellant objects because the same was in violation of the Fourth and Fifth Amendments of the federal Constitution.

As setting forth the views of the Supreme Court of the United States, and as authority for her contention, appellant relies on the case of Weeks v. United States, 232 U. S. 383, 34 Sup. Ct. 341, 58 L. Ed. 652, L. R. A. 1915B, 834, Ann. Cas. 1915C, 1177. We have again examined this, and the other authorities cited, and, in view of the limited discussion indulged in by us in the original opinion on this point, we will further refer to them.

• The question in the Weeks Case was the right of the federal officers to withhold from the accused his own private letters and papers for the purpose of using same as evidence against him, which documents the officers had obtained in a search of his house while he was in custody. Upon his application for an prder directing the return of said papers, the Supreme Court of the United* States held that said order must be granted. and the papers returned to him. Omitting any discussion oí the correctness of that decision as applicable to the facts of that case, we note that it holds directly against appellant as far as any application is here sought. Differentiating that case, the Supreme Court uses this language:

“Nor is it the case of testimony offered at a trial where- the court is asked to stop and consider the illegal means by which proofs, otherwise competent, 'were obtained, of which we shah have occasion to treat later in this opinion. Nor is it the case of burglar’s tools or other proofs of guilt found upon his arrest within the control of the accused.”

Inasmuch as the instant case before us is of the kind thus distinguished, the Weeks Case effectually excludes it.

Further discussing some decisions cited by the government, the learned court refers to the cases of Adams v. New York, 192 U. S. 585, 24 Sup. Ct. 372, 48 L. Ed. 575, and People v. Adams, 170 N. Y. 351, 68 N. E. 636, 63 L. R. A. 406, 98 Am. St. Rep. 675, both being cases in which evidence of guilt obtained by officers searching in the absence of the accused was held admissible, and, apparently approving the doctrine of said cases, the court proceeds as follows:

“ ‘The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers, or other articles of personal property, which are material and properly offered in evidence.’ This doctrine thus laid down by the New York Court of Appeals and approved by this court that a court will not in trying a criminal cause permit a collateral issue to be raised as to the source of competent testimony has the sanction of so many state cases that it would be impracticable to cite or refer to them in detail. Many of them are collected in the note to State v. Turner, 138 Am. St. Rep. 129, 135, et seq. After citing numerous cases the editor says: ‘The underlying principle of all these decisions obviously is that the court, when engaged in the trial of a criminal action, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence. People v. Adams, 176 N. Y. 351, 98 Am. St. Rep. 675, 68 N. E. 636, 63 L. R. A. 406. Such an investigation is not involved necessarily in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause, -and consider incidentally a question which has happened to cross the path of such litigation, and which is wholly independent thereof.’
“It is therefore evident that the Adams Case affords no authority for the action of the court in this case, when applied to in due season; for the return of papers seized in violation of the constitutional amendment.”

So it is at once apparent that the rule in the Weeks Case has no application to a case such as is before us, in which objection was made during the trial-that evidence offered was not legally obtained, but was obtained by illegal search and seizure.

If we apply the rule of the Adams Cases approved in the Weeks Case, supra, it would be a sufficient reply to appellant’s contention to say that the instant case was-on trial, and evidence was offered, to which the objection was made that such evidence was illegally obtained, and that the court properly refused to stop the trial and investigate the collateral issue as to how the evidence was obtained. However, we do not think the rule in the Weeks Case applicable from any point of view. There is a vast difference between demonstrative evidence, which consists of those things whose undeniable ownership and property is in the accused, and which are not directly connected with the crime under search, and such evidence when same consists of the finding of stolen property, the weapon or tools used, or other evidence directly tending to identify the crime or connect the criminal therewith. We might further observe that it is permissible under all our laws to enter houses to search for and seize stolen property, the same not being an unreasonable search or seizure, and in no sense compelling one to give evidence against himself. When such entry is over objection, same can only be allowed when in accordance with prescribed forms, such as search warrants, etc.; and any person undertaking such entry without color of law therefor does so at his peril and at risk even of life; but such entry, if without force, is not made penal by any law, and, when by reason thereof the finding of stolen property results, the fact of such finding is provable, and, if it affect the accused, he nTay not avoid this merely by asserting that he gave no consent to such entry.

In the Weeks Case the property taken was admittedly the private property of the accused. In the instant case the property found in appellant’s house was not her own, but, on the contrary, while a witness, she expressly disclaimed such ownership, and . said that the property was brought to her house by the witness Hollobaugh.

We have many well-settled rules of evidence in this state similar to the bne governing the introduction of the evidence objected to, which seem to us to make it no longer an open question; and for this reason we did not discuss it in our original opinion. One arrested and searched may not complain that what was found on his person was used in evidence against him. Jones v. State, 214 S. W. 322; Renfro v. State, 42 Tex. Cr. R. 393, 56 S. W. 1013. Property recently stolen and found in the possession of the accused is admissible against him, regardless of whether he was or was not under arrest when the same was found. Burrill’s Circumstantial Evidence, 450; Hooton v. State, 53 Tex. Cr. R. 6, 108 S. W. 651; Lynne v. State, 53 Tex. Cr. R. 376, 111 S. W. 729. The statements of the accused while under arrest, which are found, to be true, and which, aid in establishing his guilt, are admissible under numerous authorities; also that while under arrest he may be compelled to place his feet in certain tracks, or a shoe may be removed from his foot and placed in certain tracks, for identification. Thompson v. State, 45 Tex. Cr. R. 192, 74 S. W. 914; Guerrero v. State, 46 Tex. Cr. R. 447, 80 S. W. 1001. Recently after the commission of a crime evidence of finding matters in appellant’s possession which demonstrate his guilt is admissible, whether he be under arrest or not. Leeper & Powell v. State, 29 Tex. App. 63, 14 S. W. 398; Wright v. State, 56 Tex. Cr. R. 356, 120 S. W. 458.

Appellant also refers to Wharton’s Criminal Evidence, vol. 2, § 518e, which asserts that some state courts are indifferent to the methods used to obtain demonstrative evidence, but that a different rule obtains in the United States courts. We observe, however, that section 518g of Mr. Wharton’s work referred to lays down the following rule:

“It is not ground for exclusion of an article of demonstrative evidence that it was taken from the possession of the accused, even though it was forcibly taken from him, or that it was obtained by illegal search and seizure.”

Many authorities are cited in support of this text. We also quote section 518e of said work:

“Artidles Traced, to the Accused or Connected with the Offense, when Admissible. — On the same principle as the admission of the instrument or means connected with the offense to illustrate the same, articles of personal property in the possession of the accused at the time of the homicide or other criminal offense against him, or personal property in possession of the accused at the time and connected with the offense, either to identify the offense, the deceased, or the accused, are properly admissible as a part of the demonstrating and illustrating evidence.”

Many authorities are also cited in support of this text.

No authorities are cited by appellant, nor do we believe any ean be found, which hold inadmissible against the accused, the fact of finding on her premises, and inferentially in her care and control, the substantive evidences of her crime, such as the alleged stolen property.

Ex parte Wilson, 39 Tex. Cr. R. 630, 47 S. W. 996, is cited by appellant in this same connection. Examining said authority, we note that Mr. Wilson was released by this court upon habeas corpus from confinement under an order of the district court holding him in contempt because he refused to answer a grand jury seeking to compel him to divulge the whereabouts of a certain bill of sale, which disclosure, as admitted by the state’s attorney, would have been incriminating to Mr. Wilson.

The Downing Case, 61 Tex. Cr. R. 519, 136 S. W. 471, is also cited, and this latter case appears to be one wherein this court held it erroneous to compel the attorney for appellant and the appellant’s wife to testify against him and to deliver to the state’s attorney private papers of the appellant. The opinion in the Downing Case is based specifically upon the fact that articles 773, 774, and 775, of our Code of Criminal Procedure (1895) forbids making the wife or the attorney, in most instances, a witness.

There seems to us no possible dispute as to the correctness of the conclusion reached in either the Wilson or the Downing Cases. Neither of said cases discusses the proposition involved in a search for stolen property or the instruments or tools used or other demonstrative evidence tending to connect the accused with the offense. In the instant case appellant did not even make claim of ownership or right of possession to the alleged stolen property, and, while she might have objected to an entry into her house for the purpose of search and seizure until proper legal forms were complied with, yet, if stolen property was found in said house, we find nothing in any of the authorities cited which would hold' that such evidence was inadmissible.

It is also urged that we erred in holding the evidence sufficient to support the verdict. In this connection it will be noted that the trial court charged on circumstantial evidence, and that the record shows that appellant was familiar with the premises alleged to have been burglarized; that she was present and helped put up the sausage with other meat when the same was packed away, and knew where it was kept; that some weeks thereafter the meat was missing from the place where appellant had assisted in placing the same; that she told two witnesses who testified in substance that she had gone out into the country with Fitzgerald, had gotten the meat, and had been frightened by the sounds she heard, which she stated to ond of the witnesses she believed to be Mr. Cantrell shooting at them. It further appears from said record that she stated where she got the meat, and that she knew where the keys were kept; that when this meat was gone she was going to get some more; and that a part of the meat claimed to have been stolen was found in her house and identified. We think these facts of sufficient weight to justify the jury’s verdict.

As to appellant’s contention that there was no evidence of a breaking, it will be a sufficient reply to state that, if the evidence in the record be true, which is a question for the jury, it appears that appellant herself admit-' ted that on the night in question she got the keys to the smokehouse and went and got the meat, and that the owner of the house testified that he kept it locked.

It will not be necessary to convict of burglary to show that appellant took all of the missing property. It has been held in this state that the finding of a part of recently stolen property in possession of the accused would support a conviction of taking it all. Jack v. State, 20 Tex. App. 656; Rose v. State, 52 Tex. Cr. R. 155, 106 S. W. 143. It has also been frequently held that the fact of possession of recently stolen property obtained from burglarized premises, and such possession not satisfactorily explained, will support a conviction for burglary. In this case there was such evidence, and also additional testimony of statements amounting to confessions, made by the accused.

Being unable to agree with the contentions made by appellant in this motion, the same will be overruled. 
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