
    CUMMINGS v. STATE.
    (No. 5713.)
    (Court of Criminal Appeals of Texas.
    March 24, 1920.)
    1. BuRglary <&wkey;22 — Possession or temporary OCCUPANT SUFFICIENT TO JUSTIFY ALLEGATION OF POSSESSION IN HIM.
    Possession of a house by a discharged soldier occupying it for a few days and sleeping in it at night during absence of his uncle and aunt, the owners, was sufficient to justify allegation of possession in him in a prosecution for burglary of the house.
    2. Criminal law i&wkey;814(19) — Charge on PRINCIPALS HELD IMPROPER IN ABSENCE OF EVIDENCE OF CONSPIRACY.
    In a prosecution for burglary, in view of absence of showing of previous conspiracy to commit the burglary between defendant and a witness, and lack of testimony to connect the witness with the crime, trial court’s charge on principals held improper.
    3. Burglary <&wkey;-16 — Defendant not guilty UNLESS ACTUAL ENTRANT OR PRINCIPAL WITHIN STATUTE.
    Defendant was not guilty of burglary unless he was one of the parties connected with the entry of the burglarized house either by actual entry or as a principal within the terms of the statute.
    4. Burglary <&wkey;4G(8) — Charge on theory of PURCHASE OF STOLEN GOODS HELD NECESSARY.
    In a prosecution for burglary, the trial court should have charged on defendant’s theory that he purchased certain of the stolen goods from a witness offered in explanation of his possession.
    5. Criminal law <&wkey;llG9(2) — Evidence as TO IDENTIFICATION OF SHOES HELD NOT REVERSIBLE IN VIEW OF OTHER EVIDENCE.
    In a prosecution for burglary, where certain shoes were fully identified as being those of an owner of the burglarized house taken at time of burglary, evidence for state that, when shoes were found in absence of defendant, they were identified as property of owner and as taken from the house, was not reversible er-1 ror, though ordinarily such testimony is inadmissible, and, had the identification of the shoes been only that by officers, excluding identification on trial, would have been reversible error.
    6. Criminal law <&wkey;814(20) — Count negatived BY EVIDENCE SHOULD NOT BE SUBMITTED.
    In a prosecution for burglary, where the house was burglarized at night, if at all by defendant, and not in the daytime, the trial court, should not submit a count of the indictment charging daylight breaking of a private residence.
    7. Criminal law <&wkey;507(5) — Receiver of-STOLEN GOODS IS AN ACCOMPLICE.
    If a witness in a prosecution for burglary received certain of the stolen goods from defendant believing that they were stolen or having reason so to believe, he was a receiver of stolen property, and an accomplice when used as a witness.
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    K. Cummings was convicted of burglary, and he appeals.
    Reversed, and cause remanded.
    Lester, Farmer & Farmer, of Waco, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of burglary and allotted two years in the penitentiary.

Possession of the burglarized house was alleged to be in Aubrey Evans. This possession is attacked by appellant as being insufficient in law. Evans was a discharged soldier and was occupying the house for a few days, sleeping in it at night during the absence of his uncle and aunt, owners of the property. We are of opinion that under the authorities this was sufficiently his private-residence to allege such possession, in a burglary of a private residence. We deem it unnecessary to discuss this matter at length. The question has been many times before the court. See Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Lewis v. State, 54 Tex. Cr. R. 636, 114 S. W. 818; Johnson v. State, 52 Tex. Cr. R. 201, 107 S. W. 52; Dowling v. State, 63 Tex. Cr. R. 366, 140 S. W. 224; Payne v. State, 67 Tex. Cr. R. 161, 148 S. W. 694. There was no question of the fact that the house was the private residence of the uncle of Evans, and that he and his wife, owners,, were absent, and that Evans was> sleeping in the house and keeping it as his sleeping apartment during their absence.

To meet appellant’s account of his possession of the shoes he sold his father, the state used Stallard as a witness. He denied selling the shoes to appellant, and testi-fled himself, as did Ms father, that he was at home on the night of the burglary in bed sick with pneumonia, and had been for some time previous to the burglary and for some time thereafter. This testimony was used to combat appellant’s explanation of his possession of the stolen property, which explanation .was introduced by_ the state. This explanation was Intended, and would have had the effect if true, to exonerate appellant. The state had introduced appellant’s account of his possession of the property as having been received from Stallard. Stallard and his father were therefore used to disprove this statement by proving an alibi for the younger Stallard on the night of the burglary. The state’s theory was that appellant and not Stallard committed the burglary, and to show this introduced Stallard and other witnesses. The only evidence, as we understand this record, that could have been relied on to sustain the charge on principals, was that appellant was in possession of a pair of shoes which he claims to have bought from Stallard, and a week or some days after the burglary Stal-lard disposed of property also taken from the house. His explanation of his possession of the property, the evidence of his alibi, and the facts that show he was not present at the time of the burglary and could not have been, do not constitute Stallard a principal. Appellant denies his presence at the burglary; therefore the defensive theory was that he was not acting with Stallard. He was showing his innocence and indirectly seeking to establish the guilt of Stallard by his statement and his testimony that he received the shoes from Stallard. Stallard proved an alibi by himself and others on the night of the burglary, the facts having been sufficiently stated in this connection, and therefore he was not at the place of the burglary nor a participant in the crime. So far as the writer has been able to understand this record, there is no evidence connecting Stallard with the burglary except appellant’s statements and Stallard’s testimony that something like a week after the burglary appellant brought him some of the stolen goods, which he sold for appellant; but this testimony does not connect him with the original taking of the goods and burglary. All this testimony was introduced to show that he was not only not acting with Stallard, nor Stallard with him, hut it disconnected them at the time of the burglary. There is no fact to show a previous conspiracy between these parties to commit this burglary, but all the evidence seems to disprove such theory. We are therefore of opinion that the exception to the charge on principals was well taken, and the court was in error in giving this phase of the law in charge to the jury.

This emphasizes another error urged to the charge, to wit, the failure of the court to charge appellant’s theory of purchase of the goods from Stallard. This was his explanation of possession and introduced by the state. This was strengthened by his own evidence before the jury to the same effect, that is, that he bought the shoes and did not commit the burglary. If he purchased the goods from Stallard, he would not be guilty as a principal. In order to constitute him guilty of burglary, he would have to be one of the parties who was connected with the entry in the house, either by actual entry or as a principal within the terms of the statute. But in any event, the purchase of the goods in such manner as to disconnect him from the burglary was his theory, and to this effect was his explanation of possession as well as his testimony. The court should have charged upon the theory of purchase.

The state introduced evidence to the effect that, when the shoes were found, in the absence of the appellant they were identified as the property of the aunt of Evans and as shoes taken from the house on the night of the burglary. Ordinarily, this character of testimony is inadmissible. Cannada v. State, 29 Tex. App. 537, 16 S. W. 341; Cannada v. State, 24 S. W. 514; Thompson v. State, 42 Tex. Cr. R. 142, 57 S. W. 805; Ballow v. State, 42 Tex. Cr. R. 266, 58 S. W. 1023; also, in Green v. State, 56 Tex. Cr. R. 601, 120 S. W. 1002, and in Hickey v. State, 45 Tex. Cr. R. 302, 76 S. W. 920. However, in this particular case this was not reversible error. These shoes were fully identified on the trial as being those of the aunt of Evans and the shoes taken from the house at the time of the burglary. See House v. State, 19 Tex. App. 227. Had the identification of the goods been only that testified by the officers, excluding identification on the trial, this would have constituted reversible error. So where the only identification of the goods occurs in the absence of defendant and is not shown upon the trial, it is reversible error, as held in Cannada’s Case and those above mentioned.

Exception was reserved to the charge also for not withdrawing from the consideration of the jury the first count wMch charged a daylight breaMng of a private residence. Upon another trial we are of opinion this count should not be submitted. The house was burglarized at night, if at all, by defendant, and not in the daytime.

We are of opinion that the court was not in error in submitting the issue of Stallard being art accomplice when used as a witness. If he received the goods from appellant believing they were stolen, or having reason to believe they were stolen, this would constitute him'a receiver of stolen property, and therefore an accomplice when used as a witness.

For the reasons indicated, the judgment will be reversed, and the cause remanded. 
      <©^5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     