
    HERRIN v. STATE.
    (No. 8490.)
    (Court of Criminal Appeals of Texas.
    June 4, 1924.)
    1. Burglary <&wkey;4l (I)—Evidence held to show want of consent to enter store.
    Store owner’s denial of permission to defendants to enter store and surrounding circumstances held to show -want of consent to enter the store, since circumstantial evidence is sufficient.
    2. Witnesses &wkey;j337(5)~Proof of former indictment admissible, though defendant was acquitted.
    
    Where accused takes the stand, the state may prove as affecting credibility, either by his admissions or other' evidence, that he has been indicted for some other offense or offenses involving moral turpitude, even though he was acquitted.
    3. Witnesses <&wkey;337(5)—Proof necessary to render inadmissible inquiry as to conviction when defendant received suspended sentence stated.
    To render inadmissible state’s inquiry of defendant as to conviction of a felony when he received suspended sentence, defendant must affirmatively prove, in accordance with Vernon’s Ann. Code Or. Proe. 1916, art. 865f, his application to have the judgment set aside and case dismissed and the grant thereof.
    Appeal from District Court, Nacogdoches Gorinty; D. D. Guinn, Judge.
    Otis Herrin was convicted of burglary, and he appeals.
    Affirmed.
    Adams & Moore, of Nacogdoches, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

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

It is insisted that the record fails to show want of consent to the burglarious entry on the part of the alleged owner of the premises. We think the record shows both by the testimony of ‘ the alleged owner as follows: “They did not have my permission to enter that store or to take anything out of it”—and also by the circumstances narrated as surrounding the transaction, the want of consent. Such want of consent may be shown circumstantially.

There are two bills of exception in the record. Bill A complains of the refusal of a special charge which seeks to have the jury told that evidence of another offense was admitted solely as affecting the credibility of the accused as a witness and that they could not consider this other, kind unless it had been shown to their satisfaction beyond a reasonable doubt that the accused was guilty of the other crime. What was said by this court in Lankford v. State, 93 Tex. Cr. R. 442, 248 S. W. 389, has no application to a case wherein the accused takes the witness stand, and for the purpose of affecting his credibility the state proves either by his admission or by other evidence that he has been indicted for some other offense or offenses involving moral turpitude. Under our holdings it may be shown for the purpose of affecting credibility that a party has been indicted, even though he may also have been acquitted in such case. See Section 172, Branch’s Annotated P. C., for collation of authorities. Such being the law, we have no difficulty in concluding the learned trial judge committed no error in refusing said special charge.

The other bill of exceptions presents appellant’s objection to inquiries made of appellant relative to his conviction of a felony at a foi'mer time in which case he received a suspended sentence. In order to make it wrong to make such inquiry it would have to be affirmatively shown by the party objecting that the defendant in such suspended sentence case had made application to have the judgment set aside and the case dismissed, and that this had been done in accordance with article 865f, Vernon’s C. O. P. Nothing' of this sort appears in this record to, have been shown or attempted. The bill shows no error.

The facts amply supporting the judgment of conviction, we have no option hut to direct- an affirmance; and it is so ordered.  