
    SMITH v. STATE.
    (No. 7905.)
    (Court of Criminal Appeals of Texas.
    Nov. 21, 1923.
    Rehearing Denied Dec. 19, 1923.)
    1. Burglary t&wkey;4l(l) — Evidence held to sustain conviction.
    In prosecution for burglary, evidence held to sustain conviction.
    2. Burglary <&wkey;38 — Testimony that stolen property was found at home of one suspected of complicity with defendant held admissible.
    In prosecution for burglary, testimony that a part of the stolen property was found at the home of one of the men suspected of complicity with defendant, held admissible.
    3. Burglary <&wkey;38 —• Evidence that defendant with other men was seen handling what looked like stolen goods held admissible.
    In prosecution for burglary of dry goods store, evidence that shortly after sunrise the morning following the burglary defendant and two men, suspected of acting with him, were seen together at the home of one of the men, handling what looked like the stolen goods, held admissible.
    4. Criminal law &wkey; 1091(1!) — Bill of exceptions in question and answer form not considered.
    Bill of exceptions in question and answer form will not be considered.
    5. Criminal law &wkey;>763, 764(6) — Refusal, of special charge singling out particular circumstance held proper.
    Refusal of special charge, singling out a particular circumstance in the case, and asking that the jury be instructed that such circumstance alone would not warrant conviction, held proper, as it would have been on the weight of evidence.
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Henry Smith was convicted of burglary, and he appeals.
    Affirmed.
    Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   DATTIMORE, J.

Appellant was convicted in the district court of Titus county of burglary, and his punishment fixed at two years in the penitentiary.

The case is upon circumstantial evidence. The store of Mrs. Russell was broken and entered in the nighttime. Tracks of an automobile went from the rear door of the store. Car tracks - similar were found the next morning at appellant’s place. Some of the stolen goods were found in a tree top in appellant’s pasture. The state’s theory of the ease was that appellant and two others acted together in the alleged burglary. It was shown that appellant, in a car with two other men, was seen going toward the town in which the burglarized store was situated, in the afternoon preceding the burglary. Early the next morning appellant was seen at the home of one of the other men suspected. He and the other two men in question were handling some goods. A quantity of the goods from said store was found in the house of one of the other men supposed to have been engaged in the enterprise. These facts seem to justify the conclusion of guilt. We do not think the learned trial judge in error in admitting testimony of the finding of part of the stolen property at the home of one of the other men suspected of complicity with appellant. Likewise we think it permissible to show that, shortly' after sunrise the morning following the burglary, appellant and the two men suspected of acting with him were seen together at the home of one of said men handling what looked like dry goods.

Appellant’s bill of exceptions No. 3 is in question and answer form and will not be considered. In our opinion it was permissible for the state to show that upon the premises of each of the other two men suspected with appellant was found a part of the stolen goods, and that part was found hidden in the pasture on appellant’s place. The refusal of a peremptory motion for an instruction of not guilty was correct. The refusal of a special charge, singling out a particular circumstance in the case, and asking that the jury be instructed that said circumstance alone would not warrant a conviction, was correct. Such a charge would have been on the weight of the evidence.

Finding no error in the record, the judgment will be affirmed. 
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