
    DIXON v. STATE.
    (Court of Criminal Appeals of Texas.
    April 5, 1911.)
    1. BURGLARY (§ 41) — PROSECUTION—EVIDENCE —Sufficiency. '
    In a prosecution for burglary, evidence held to sustain a conviction.
    [Ed. Note. — For other cases, see Burglary, Dee. Dig. § 41.]
    2. Burglary (§ 46) — Instructions—Possession of Recently Stolen Property.
    Where one accused of burglary was accosted by the owner when leaving the house and told to return a pair of shoes and a pistol, which he did, throwing them into the owner’s buggy without explanation, and running away, it was proper to omit to charge upon the presumption arising from the possession of recently stolen property, as he made no explanation of his possession.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    3. Criminal Daw (§ 1090) — Appeal—Record— Questions Presented — Bills of Exceptions.
    Improper argument of a district attorney in a criminal case cannot be reviewed, unless preserved by bill of exceptions.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. § 1090.]
    Appeal from District Court, Bexar County; Edward Dwyer, Judge.
    John Dixon was convicted of burglary, and he appeals.
    Affirmed.
    C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

The appellant was indicted and convicted for burglarizing the house of Buford Taylor, in Bexar county, on or about May 3, 1910, and his punishment assessed at three years’ confinement in the penitentiary.

1. By appellant’s motion for a new trial, he contends that the verdict and judgment of conviction are contrary to and unsupported by the evidence, in that there was no evidence showing or tending to show that the house of said Taylor was broken and entered by the appellant.

The evidence shows that about 3 o’clock on the date the appellant is charged with the burglary a negro man, suiting his description, was seen by one of the lady neighbors of Taylor who lived in a house only about 25 feet from his to enter the yard of Taylor, and go to the back part of his house. There was no one in the house at that time, and Taylor when he left it in the morning had it all closed up. This lady watched this negro for some time to see whether he returned from the back part of the premises; he being out of her sight when there. After waiting a short time and he did not return, she, knowing that no one was at the house, went into her yard, so that she- could see this negro. When she got where she could see him, he was working with the closed blinds. She thereupon went to a phone and phoned to -an officer. Another lady neighbor thereupon also telephoned to the said Taylor, who was at his store about eight blocks from this burglarized house. He also immediately phoned a policeman, and hitched up his horse to his buggy as quickly as possible and rapidly drove towards his house. When arriving close to it, some lady neighbor pointed out the appellant to said Taylor, and told him, “There he goes.” Taylor at once.started to where the appellant was walking away, and upon reaching him found that he had a pistol and a pair of shoes which had been taken out of his house. He thereupon called to the appellant to give him back his pistol and shoes. The negro then pitched the pistol and shoes into said Taylor’s buggy and ran, running across a park. Taylor and the policeman then took after the appellant, they in the buggy, and he, running across the park and the back yards of other persons, escaped, and was not then caught nor arrested. He was clearly identified, however, as the party who pitched the pistol and shoes in Taylor’s buggy and ran at the time. He was not arrested until a week or 10 days later. The testimony further shows that when Taylor returned to his house he found that some one had broken into a back window by tearing away the blinds and a screen, and in that way and through this window had effected an entrance to his house. All of the drawers in various articles of furniture of the house had been pulled out and various articles strewn about the floor. The pistol and shoes were taken out of the house at the time whoever it was effected this entrance. The appellant made no explanation about his possession of the pistol and pair of shoes when first accosted thereabout by said Taylor, the owner, but pitched them into the buggy at once, and ran to escape arrest.

The court correctly charged on burglary, theft, alibi (this apparently being appellant’s defense), presumption of innocence, reasonable doubt, and also on circumstantial evidence. We therefore hold that the evidence is amply sufficient to sustain the conviction.

2. The second ground of appellant’s motion for a new trial is as follows: “Because the court erred in the first paragraph of his charge, which is as follows: ‘In this case the defendant stands charged, by second count of the indictment alone submitted, with the offense of burglary alleged to have been committed in tbe daytime, with intent to commit the crime of theft, in the county of Besar, state of Texas. To this charge the defendant has pleaded “not guilty.” ’ ” He does not attempt to show wherein this short paragraph of the court’s charge was erroneous. We see no error therein, even when taken alone, and there is none, either taken alone or in connection with the whole charge of the court.

3. The nest ground of complaint is that the court failed and refused to charge on the subject of recently stolen property in the possession of the accused. As stated above, the appellant made no explanation of his possession at the time when first accosted, but instead immediately pitched the stolen articles into the buggy of the owner of the burglarized house and stolen property, and ran to prevent arrest and to escape. The facts did not call for a charge on this subject, and would have been inappropriate.

4. The other grounds of complaint are to some remarks of the assistant district attorney in the argument to the jury. These matters are in no way presented by bills of exception, and this court cannot therefore consider these grounds of the motion, because they can be presented to this court only by proper bills of exception.

There being no error in the record, the judgment is affirmed.  