
    RODRIGUEZ v. STATE.
    (No. 10231.)
    (Court of Criminal Appeals of Texas.
    June 23, 1926.)
    1. Criminal law <&wkey;>l!!9(2).
    Bill of exceptions, complaining of refusal to permit cross-examination, is insufficient to show error, where not disclosing what was sought to be proved.
    2. Burglary <&wkey;>4l(l).
    In prosecution for burglary of residence, evidence held sufficient to sustain conviction.
    3. Criminal law &wkey;>939(3) — Refusal of new trial for want of expert testimony held not error, where experts were in court at trial, and failure to call them was not excused.
    Refusal of motion for new trial, sought on ground of want of expert testimony, held not error, where expert witnesses were in court during trial at request of counsel for accused, and no reasonable excuse was shown for failure to call them.
    
      Commissioners’ Decision.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    Arturo Rodriguez, alias Miguel Rodriguez, was convicted of burglary, and be appeals.
    Affirmed.
    Lindsley M. Brown, of Eort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   BAKER, J.

The appellant was convicted in the criminal district court of Tarrant county for burglary, and bis punishment assessed at five years in the penitentiary.

There is only one bill of exception in the record, and no objections to the court’s charge. The only questions upon which the appellant seems to rely for a reversal are the insufficiency of the testimony and the refusal of the court to grant a new trial in order that appellant might introduce expert evidence bearing on the alleged signature of the appellant to the pawn ticket introduced in evidence by the state.

The bill of exception complains of the court’s refusal to permit the appellant to interrogate the state’s witness Klar, and ' to pursue the course of his examination of said witness as to the transactions with appellant in witness’ place of business. This bill wholly fails to show what the appellant expected to prove by the witness, and for that reason this court is unable to determine whether there was any error in the ruling of the court thereon, and will have to assume that the court correctly refused to permit said proffered testimony, in the absence of a showing to the contrary. Hennington v. State, 101 Tex. Cr. R. 12, 274 S. W. 599; Kitchen v. State, 101 Tex. Cr. R. 439, 276 S. W. 252; Thompson v. State, 90 Tex. Cr. R. 15, 234 S. W. 401.

The record discloses that the residence of Robert Caraway was forcibly entered on the 6th of August, 1925, at about 4:15 a. m.; that the wife of the prosecuting witness, upon being awakened, turned on the light, whereupon the burglar ran out through the door, and was pursued by the prosecuting witness, Caraway,- for some distance. Said prosecuting witness testified that he discovered that the burglar could not, or did not, run very rapidly, and that he could easily have caught him had he desifed to do so, but that, upon getting close to the burglar, he decided it would be best not to attempt to overtake or interfere with him. Upon returning to his residence, he discovered that his trousers, watch, and about $3 or $4 in change had been taken, and the next morving discovered the trousers a short distance' from his • residence. The prosecuting witness and his wife both described the burglar as being stout and stocky in appearance, but, not being able to see his face, they were unable to tell his color. The burglary was immediately reported to the proper authorities in the city of Port Worth, and it appears that on the following day the appellant pawned the prosecuting witness’ watch with the state’s witness Klar, which watch was located by the city detectives, and immediately identified by the witness Caraway, as his property. The state’s witness Klar identified the appellant as being the party who pawned the watch in question to - him. The appellant defended upon the ground, of an alibi, and testified in his own behalf that on said date he was at Mertens, Tex., and not in the city of Port Worth or at the place of the burglary. He also introduced other evidence tending to support his defense. Upon cross-examination, he admitted that he was of short stature, stoutly built, could not run fast, and was somewhat crippled. He also admitted that he was well acquainted with. the witness Klar, and had transacted business with him prior to the time of the alleged pawning of the watch. After a careful examination of this testimony, we are of the opinion that the evidence introduced by the state was sufficient to warrant the jury in finding the appellant guilty of burglary as charged. Morgan v. State, 25 Tex. App, 513, 8 S. W. 487; Nightengale v. State, 50 Tex. Cr. R. 3, 95 S. W. 531; Roberts v. State, 60 Tex. Cr. R. 20, 129 S. W. 611; Renois v. State, 90 Tex. Cr. R. 202, 234 S. W. 532.

The appellant’s motion for a new trial, on account of the want of expert testimony to show that the signature alleged to have been made by the appellant on the pawn ticket and his signature as written while upon the witness stand were different, fails to show any error in the court’s action thereon, for the reason that the record discloses that said expert witnesses were in court during the trial at the request of appellant’s counsel, and no reasonable excuse is shown for the failure to ascertain what their testimony would be, or the failure to use them if desired before the trial closed.

After a careful examination of the entire record, we are of the opinion that, the judgment of the trial court should be affirmed, and it is accordingly-so ordered.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
      
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