
    DITTO v. STATE.
    (No. 4970.)
    (Court of Criminal Appeals of Texas.
    April 3, 1918.)
    1. Bueglaby <§=>41(1) — Evidence — Sufficiency.
    Evidence held insufficient to sustain conviction of burglary.
    2. Burglary <@=>35, 41(1) — Evidence—Sufficiency — Extrinsic Aids — Tracks.
    While tracks corresponding to those of defendant, in connection with other evidence, may be shown, they are not alone sufficient to convict of the offense of burglary.
    3. Criminal Daw <@=>945(2) — New Trial — Newly Discovered Evidence.
    Where conviction of burglary rested largely on finding tracks similar to those of accused at the scene of the burglary, and after conviction, a third person made affidavit that his house had been burglarized and a similar track found while accused was in jail, such testimony warranted new trial on the ground of newly discovered evidence.
    4. Criminal Daw <§=>1001 — Sentence—Suspended Sentence — Offenses Subject.
    Under Vernon’s Ann. Code Or. Proc. 1916, art. S65b, it is only burglary of a private residence, and not burglary of a storehouse, which prevents the imposition of a suspended sentence.
    5. Criminal Daw <§=>719(1) — Argument of Counsel.
    In prosecution of former train porter for burglary, argument that the oldest train porter on a certain railroad had been sent to the penitentiary was improper.
    Appeal froto District Court, Beeves County; Clias. Gibbs, Judge.
    Will Ditto was convicted of burglary, and he appeals.
    Reversed and remanded.
    Jno. B., Howard and Clay Cooke, both of Pecos, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary and allotted 2 years in the penitentiary.

Dawson testified that his storehouse was burglarized at night, and about $1.50 in change taken from his money drawer. The •breaking and entry of the house we deem unnecessary to discuss. Appellant was arrested the next morning, and placed in jail, indicted, tried, and convicted. Among other things, it is contended the evidence is not sufficient to support the conviction. Appellant was not found in possession of the stolen money. The money he had in his possession did not correspond with that taken from the house. Appellant was working in a barher shop, and had been in Pecos City a few days when the burglary occurred. The only evidence which tends to connect the defendant with the transaction was the comparison of the shoe he was wearing at the time he was arrested with the track found near the window of the store which is said to have been broken. The sheriff and the city marshall testified that appellant’s shoe corresponded with the track found at the place indicated.

We are not satisfied to affirm this judgment, with this as the only criminating fact. Tracks in connection with other evidence may have some cogency tending to illustrate the case, or connect an accused with a given offense, but at best it is unsatisfactory. This is practically the only evidence in the case. We are of opinion the conviction should not be sustained, especially in view of tbe fact that there are no other criminating circumstances.

There was a motion for new trial filed with attached affidavits setting up various matters of testimony which might be taken into consideration in reaching the conclusion that appellant should have an-j other trial. Among other things is an affidavit of a witness to the effect that after | the alleged burglary of Dawson’s storehouse his house was burglarized, and a track very similar to that found near the Dawson house was found at his house. This is brought within the rule of newly discovered evidence, and may be worth something upon another trial before a jury, because appellant at the time of the burglary of the second house was incarcerated in jail, and therefore could not have committed the other burglary.

Appellant filed a plea for suspended sentence. Evidence was introduced, but the court declined to submit the issue, because tbe crime of burglary was not brought within the statute justifying or authorizing a suspension of the sentence. This was not burglary of a private residence but a storehouse. In his conclusion the trial judge was in error. Article 865b, Vernon’s Ann. O. O. P., recites that it is only the burglary of a private residence which prohibits the suspended sentence. This was an amended statute, omitting burglary and confining the interdiction of a suspended sentence to burglary of a private residence. Appellant was entitled to the charge, and it should have been given. Upon another trial this matter should be presented to tbe jury.

The testimony alleged to be newly discovered will be produced upon another trial, and it is unnecessary to discuss it.

There was a bill of exceptions reserved to tbe statement of tbe prosecuting officer to tbe effect that a train porter known as “T. P.” was in the penitentiary for violation of the law, and that he was the oldest train porter on the Texas & Pacific Railroad running from Ft. Worth to El Paso, and had been such train porter for 35 years, and yet he had been sent to tbe penitentiary. The evidence shows that appellant had served as a train porter for 15 years. The argument of counsel seems to have been directed to the fact that, inasmuch as the other train porter was in the penitentiary, this should be used by the jury against defendant. There is no evidence in the record with reference to the other train porter being in the penitentiary. In fact, he seems not to have been known in the record at all except from the statement of the prosecuting counsel. Upon another trial these remarks will not be indulged. We are not willing, in the condition of this record, to sustain this conviction, and believe appellant should have another trial in order that his legal rights may be properly adjusted and passed upon. Nor are we satisfied, in view of this record, to sustain the judgment of the trial court because of the sufficiency of the testimony.

The judgment, therefore, will be reversed, and the cause remanded., 
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