
    WILKIRSON v. STATE.
    (No. 10376.)
    Court of Criminal Appeals of Texas.
    June 1, 1927.
    1. Indictment and information <§=>!74 — Allegation in indictment that defendant conspired with all of alleged burglars held not to require proof of conspiracy with more than one.
    Allegation in indictment that defendant agreed with all of alleged burglars to furnish arms and aid them in committing burglary held not to be considered as so descriptive of the offense charged as to require proof of conspiracy with more than one, and hence an instruction the jury might find defendant guilty if he agreed with all, “or either of them,” was not error.
    2. Criminal law <g^8l-I (2) — Where evidence of aiding in burglary was circumstantial only, singling out particular facts in charge held reversible error.
    Where evidence that defendant aided in committing burglary was circumstantial only, a charge of the court, which enumerated particular articles which it was alleged defendant had furnished burglars and instructed jury to find defendant guilty if he had knowledge that they were to be used in burglary, held reversible error, since the practice of enumerating particular articles' or issuable facts is upon the weight of the evidence.
    3. Criminal law <3=»691 — Defendant cannot complain of admission of testimony obtained from search of premises not belonging to defendant or under his care.
    Defendant cannot complain of the reception of testimony as to what was found as the result of the execution of a search warrant, where the premises searched did not belong to him and were not under his care, control, or management.
    4. Burglary <3=>I6 — “An understanding” with burglars, is not within comprehension of statute upon accomplices.
    Instruction in burglary prosecution, making specified action of jury dependent upon belief that there was “an understanding” between burglars and defendant accused of being an accomplice, held erroneous, since the expression “understanding” is not within the comprehension of the statute upon accomplices.
    Appeal from District Court, Denton County ; W. S. Moore, Judge.
    J. C. Wilkirson was convicted of being an accomplice to burglary, and he appeals.
    Reversed and remanded.
    Robert H. Hopkins, of Denton, and A. L. Curtis, of Belton, for appellant.
    Elbert O. Hooper, of Denton, and Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   LATTIMO’RE, J.

Conviction of accomplice to burglary; punishment, five years in the penitentiary.

Appellant was charged with complicity in the burglary of a bank, it being alleged that other named parties burglarized said bank, and that appellant, while not present at the time and place of the burglary, had theretofore agreed with said parties to furnish arms and aid them in the commission of said offense. In his charge the learned trial judge told the jury that appellant would be guilty if they believed beyond a reasonable doubt that he agreed with all of said named parties, or either of them, to aid in committing said offense. Exception was reserved to that part of the charge wherein the court authorized the jury to find appellant guilty if he had agreed with either of said parties, it being insisted that the allegation in the indictment of an agreement with all would not be supported by proof of .an agreement with one or any number less than all of those parties alleged to be the burglars. We do not think the allegation that an agreement was entered into with all the alleged principals imposed upon the state the burden of proving that such agreement was, in fact, made with all, nor that all participated in the burglary. We are not of opinion that the allegation referred to became a descriptive of the offense of such character as to necessitate its proof. The case of Woodworth v. State, 20 Tex. App. 375, seems to hold to the contrary, and in line with that case are Looney v. People, 81 Ill. App. 370, Olson v. United States (C. C. A.) 133 P. 849, Hardy v. United States (C. C. A.) 256 F. 284, and Bryant v. United States (C. C. A.) 257 F. 378. It follows that, in our opinion, there was no-error in the charge of the court in the matter under discussion.

The court further charged the jury that if they found that said named parties committed the burglary alleged, appellant not being present, and that prior thereto appellant furnished arms or aid to said parties, etc., to commit such burglary, “or if you find and believe from the evidence, beyond a reasonable doubt, that the defendant, J. C. Wilkirson, had a knowledge of the purpose for which the tanks.and goggles and torch and other instruments were td be used, and that in having such knowledge, if any, the said J. O. Wilkirson voluntarily and knowingly'and willfully, unlawfully, and fraudulently prepared or furnished aid of any kind, as charged in the indictment, for the purpose of assisting in the commission of said offense of burglary at said bank, and you further find and believe that said J. C. Wilkirson was not personally present when said offense-was committed, if any was committed, you will find the defendant guilty.” This part of the charge was excepted to as being on the weight of the testimony, and as singling out the articles named and the fact of mere knowledge on the part of appellant, and causing the jury, to attach undue importance to same. We must bear in mind that this case was dependent on circumstantial evidence and that the jury were so told in the charge. The law is too well settled to need elaboration at our hands that the practice of enumerating particular articles or issuable facts is upon the weight of the evidence. In Moore v. State, 59 Tex. Cr. R. 364, 128 S. W. 1115, 1116, it is said:

“The charge of the court should be so framed as not to give undue prominence to any fact, theory or proposition of law. It may be stated, we think, as a sound proposition, that where the evidence is only circumstantial, that the court will be trenching upon a charge on the weight of evidence by singling out the circumstances and charging the jury affirmatively with regard to them. Under such circumstances the state’s theory can only be deduced from other facts and circumstances in evidence, and the court should avoid singling out and charging the jury with reference to them. Dobbs v. State, 51 Tex. Cr. R. 113, 100 S. W. 946; Parnell v. State, 51 Tex. Cr. R. 620, 103 S. W. 907; Hazlett v. State [Tex. Cr. R.] 96 S. W. 36; Carroll v. State, 50 Tex. Cr. R. 485, 98 S. W. 859 [14 Ann. Cas. 426, 123 Am. St. Rep. 851]; Fuller v. State, 50 Tex. Cr. R. 14, 95 S. W. 541; Walters v. State, 37 Tex. Cr. R. 388 [35 S. W. 652]; Milrainey v. State, 33 Tex. Cr. R. 577 [28 S. W. 537].”

In note 127, under article 658, Yernon’s 1925 Revision of the Annotated Code of Criminal Procedure, numerous authorities are cited as supporting the proposition stated as follows:

“It is not proper for the court to single out particular facts or specific parts of the testimony and charge thereon. To do so would be instructing on the weight of the evidence.”

It might well be doubted if the aid to the alleged burglars could consist at all “in having; such knowledge.” Appellant having excepted to the charge in this particular, and no change appearing, and the matter being material to the rights of appellant, we must regard it as reversible error.

Appellant’s complaints of the reception of testimony as to what was found as the result of the execution of the search warrant would avail him nothing, it appearing that the premises searched did not belong to appellant, nor were they under his care, control, and management. Craft v. State (No. 9858) 295 S. W. 617, opinion not yet [officially] published; Dozier v. State, 105 Tex. Cr. R. 413, 289 S. W. 45.

In view of the reversal of this case and of another trial, attention is called to the fact that in the charge the court erroneously makes some specified action of the jury dependent upon their belief that there was “an understanding” between appellant and the other parties named in the indictment. The expression “understanding” is hardly within the comprehension of the statute upon accomplices .

For the error mentioned, the judgment will be reversed and the cause remanded. 
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