
    THOMAS v. STATE.
    (No. 7808.)
    (Court of Criminal Appeals of Texas.
    June 20, 1923.)
    1. Criminal law <3=»1092(9), 1099(6)—State-ment of facts and bills of exceptions held filed in time.
    Where, in a prosecution of defendant for being a delinquent child, motion for new trial was overruled January 15, 1923, and by order then made defendant was given 90 days in which to file statement of facts and bills of exceptions, a filing March 27, 1923, was in time regardless of whether the transcript showed the date of the adjournment of the trial court.
    2. Burglary <&wkey;4—Room held “house?’ within statute.
    A room is a house within the burglary statute.
    [Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, House.]
    3. Criminal law &wkey;»378—Specific instances inadmissible to rebut testimony of defendant’s good character.
    In a prosecution for being a delinquent child, tesitmony by the sheriff that he toók a pistol from a boy whom he believed to be defendant, and by another witness that he saw defendant with a pistol and took it away from him several months before the trial, was inadmissible as rebutting testimony of defendant’s good character.
    4. Criminal law <&wkey;ll 174(1) — Misconduct of jury considering evidence not presented by witnesses held to require reversal.
    In a prosecution for being a delinquent child, evidence that the jury considered testimony not coming from any witness, and hurtful to defendant, held misconduct requiring a reversal.
    Appeal from Marion County Court; E. B. Lewis, Judge.
    Andy Thomas was convicted of being a delinquent child, and he appeals.
    Reversed and remanded.
    I. C. Underwood, of Jefferson, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the county court of Marion county of being a delinquent child, and his punishment fixed at three years’ confinement in the State Industrial School for Boys.

The state moves to dismiss this appeal because the transcript fails to show the date of the adjournment of the trial court. If the record failed to otherwise show that the statement of facts and bills of exception were filed in time, said motion would be granted; but it appears that the motion for new trial, herein was overruled on January 15, 1923, and that by order then made appellant was given 90 days in which to file statement of facts and bills of exception. Same were filed March 27, 1923. They were filed in time. The object of a corrected caption showing the date of the adjournment of the trial court being thus accomplished, the state’s motion is denied.

The issue in this case was delinquency vel non. The particular violation of the law set out in the state’s pleading upon which it sought to predicate the delinquency of appellant is burglary. This offense is described in the affidavit and information in substantially the same language. A room is held to be a house within the burglary statute. The omission of the word “said” in the information before the word “house” does not vitiate said information.

Testimony of Sheriff Terry that he was called to stop a fight among some negro boys, and took a pistol off one of the boys, whom he believed to be appellant, and of witness Young that several months prior to the trial he saw appellant with a pistol and took it away from him, was not admissible as rebutting what is denominated' by the trial court the defendant’s testimony of good character. Such testimony consisted only of the statement by a defense witness that appellant had driven a delivery wagon for him for several years, and had been found trustworthy. Evidence of specific acts of misconduct is not admissible on the part of the state to rebut proof of good character of the accused, nor to establish his bad character. The rule goes no further than to allow a witness who deposes to good character to be cross-examined as to specific acts of misconduct which, if known to him, might affect the weight of his testimony in the opinion of the jury. Branch’s Annotated P. O. § 168, cites many authorities.

Misconduct of the jury was set up by motion for new trial. Juror Baugh testified on the hearing of said motion as follows:

“Some of the jurors while we were considering our discussion concerning the guilt or innocence of the defendant discussed or mentioned the fact that the defendant did not testify for himself, and that this defendant was the same boy who stole E. Davis’ small pistol some months prior to this transaction, and that Mr. Terry, the sheriff, got the pistol back from the defendant.”

Another juror gave the following testimony:

“That either Mr. Janes or Mr. Cromer, members of said jury, during the consideration of the verdict mentioned the fact that they believed under Mr. Terry’s evidence that this boy was the negro who stole the pistol some four months before this transaction, and that the derringer pistol was the one that said Terry took off of this defendant at the time of the negro fight testified to by the witness Terry.”

The vice of testimony such as the above cannot be removed by a qualification such as that affixed by the learned trial judge to the bill of exceptions presenting this matter, it being said in the qualification as follows:

“The juror who testified on motion for new trial stated the fact that the defendant failed to testify was mentioned by some one, they did not know who, but they did not discuss it, and the matter was dropped at that, and they did not consider it at all.”

Not only was the failure of the appellant to testify referred to injuriously by the jurors in their retirement, but new testimony not coming from the mouth of any witness, and hurtful to appellant, appears in the statement of Mr. Baugh above quoted.

For the error mentioned, the judgment will be reversed, and the cause remanded. 
      <S^>For other cases see same topic and KEY-NUMBER in all Kev-Numbered Digests and Indexes
     