
    EDWARDS v. STATE.
    (No. 6597.)
    (Court of Criminal Appeals of Texas.
    Feb. 1, 1922.
    Rehearing Denied March 1, 1922.)
    1. Burglary <@=^28 (7)— State not required to show value of property taken.
    In prosecution for burglary, the state was not required to show the valhe of the property taken from the burglarized premises.
    2. Criminal law c§m»379 — Question as to defendant’s reputation should be directed to general reputation in the community.
    The question as to defendant’s reputation should he directed to the general reputation in the community, and not merely to the reputation.
    3. Criminal law <§»I059(2) — Exception to charge held too general for review.
    In prosecution for burglary, exception reading, “Defendant excepts to the charge of the court as to domestic servant, in that it fails to charge that the employment must be for outside work exclusively,” held too general for review.
    4. Criminal law @^>1038(3) — Remarks of prosecutor not ground for reversal, In absence of request to instruct jury not to consider them.
    Remarks of prosecuting attorney, made' in reply to argument of defendant’s attorney, held not ground for reversal, in absence of request for instruction charging jury not to consider such remarks.
    5. Criminal law <&=»I054(I), 1056(1), 1090(8, 14) — Complaints of charges given and evidence admitted not considered, in absence of exceptions and bills of exceptions.
    Complaints, made in motion for new trial, of charges given by the lower court and of evidence admitted upon the trial, cannot be considered by appellate court, unless charges were properly excepted to when given, and unless proper exceptions were taken and preserved by bill of exception.
    On Motion for Rehearing.
    6.- Burglary <®=»2 — -One who broke into-house to steal whisky held guilty of burglary.
    Where owner procured whisky before the present prohibition law went into e'fféct, and made a report to the United States government with reference thereto, and without any complaint from the government continued to hold the whisky, one who broke into his house in Violation of Yernon’s Ann. Pen. Code 1916, art. 1319, for the purpose of stealing it, was guilty of burglary, even though owner may not have been permitted to go into the open market and offer the same for sale.
    7. Burglary <@=»28(6) — One may be in possession of house, though temporarily in sanitarium.
    In prosecution for burglary, in which it was •claimed that defendant had broken into the house of a person for the purpose of stealing whisky kept therein, the fact that such person was temporarily in a sanitarium at the time of the commission of the crime did not disprove the allegation that the house was in possession of such person at the time of the crime.'
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    • Aaron Edwards was convicted of burglary, and he appeals.
    Affirmed.
    James E. Yeager, of Waco, for appellant.
    R. 6. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE,- J.

Appellant was convicted in the district court of McLennan county of the offense of burglary, and his punishment fixed at two years in the penitentiary.

Appellant has four bills of exception in the record, which will be noticed. His •first bill of exceptions is to the refusal of the court to give a special charge, instructing the jury that, in order for one to be convicted of theft, the property taken must have had some market value, etc. Said charge was correctly refused. Appellant was not on trial for theft, and on the trial of one accused of burglary it is not necessary to show the value of the property taken from the alleged burglarized premises. Hayes v. State, 36 Tex. Cr. R. 146, 35 S. W. 983; Moseley v. State, 43 Tex. Cr. R. 559, 67 S. W. 414; Johnson v. State, 48 Tex. Cr. R. 339, 88 S. W. 813; Lynne v State, 53 Tex. Cr. R. 386, 111 S. W. 151.

One seeking to show the good character of his client by proof of reputation must ask as to the general reputation in the community of residence, and a question directed merely to reputation, and omitting the general character thereof, would be objectionable. Branch’s Ann. P. 0. p. 115, and collated authorities.

An exception to the charge of the court stated as follows:

“Defendant excepts to the charge of the court as to domestic servant, in that it fails to charge that the employment must be for outside work exclusively”
—is too general to call for review. Vernon’s O. C. P. note 57, p. 521. No special charge presenting what appellant considered a correct definition of the term “domestic servant” was presented. Pretermitting a discussion at length of the facts relevant to a burglary by a domestic servant, we are of opinion that the entry into the house in question was shown to have been effected by actual breaking. Article 1319, Yernon’s P. C.

The remarks of state’s counsel complained of in bill of exceptions No. 4 appear from the qualification of said bill by the trial court to have been made in reply to the argument of appellant’s counsel. No special charge was asked instructing the jury not to consider such remarks. No error appears in said bill.

Many matters are complained of in appellant’s brief, which we cannot consider because not brought before us in any of those ways provided by statute for the presentation of matters believed to be erroneous. Complaints made in motions for new trial of charges given by the lower court, and of evidence admitted upon the trial, cannot be considered by- us, except such charges be properly excepted to when given, and proper exceptions be taken and preserved by bill of exceptions shown in the record to the introduction or rejection of evidence.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

In his motion for rehearing appellant insists that we were mistaken in holding that the' court properly' refused his special requested instruction with reference to the value of the property taken as a result of the alleged burglary. Appellant proceeds upon the theory that, because there is a law making it an offense to sell whisky, it follows there is no market value for the same, and appellant cannot be guilty of burglary if the burglary was perpetrated for the purpose of stealing whisky. We do not regard it as necessary to discuss the question at any length. The evidence in the instant case shows that before the present prohibition law went into effect the owner of the whisky procured a considerable amount thereof, and made a report to the United States Government with reference thereto, and without any complaint from the government continued to hold the same. It would appear he was in lawful possession of the whisky, and the fact that he may have not been permitted to go into the open market and offer the same for sale would none the less render one guilty of burglary who broke into the house with the purpose of stealing the whisky kept therein.

Appellant also complains in his motion that the court did not discuss the question raised by him in his motion for new trial; viz. that the evidence did not support the allegation in the indictment that the house alleged to have been burglarized was occupied by Tom Primm. The proof shows that at the time of the burglary Mr. Primm was in a sanitarium, and had been for some four or five weeks. His wife remained at home, visiting and staying with him at the sanitarium as much, of the time as was practicable for her to do so. The rules as to alleging and proving ownership or possession in cases of burglary are the same as in cases of theft. See Branch’s Anno. Penal Code, § 2325, and authorities collated thereunder. It has been held by this court that, although the proof might show that the owner was out of the state at the time of the theft, it will not change his possession of the property if he had not left the same in the actual care, control, and management of another. Webb v. State, 44 S. W. 498;. Parks v. State, 89 S. W. 1064; Cameron v. State, 44 Tex. 652. The most recent case discussing in whose possession or control the burglarized house should be alleged where the evidence shows it was community property will be found in Peoples v. State, 234 S. W. 394. The fact that Mr. Primm was temporarily in the sanitarium did not render it inappropriate for the state to allege that his residence was in his possession or custody, and the proof made was not inconsistent with the allegation.

The motion for rehearing is overruled. 
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