
    KINKEAD v. STATE.
    (Court of Criminal Appeals of Texas.
    March 1, 1911.
    Rehearing Denied March 29, 1911.)
    1. Burglary (§ 36) — Evidence.
    In a trial for burglary, where it appeared that defendant was arrested in another county a day or so after the burglary and had the stolen goods in his possession, testimony of a witness in charge of flats where pros.ecutor had a room that about a week prior to the burglary defendant called on witness and rented a room adjoining prosecutor’s; that on the morning of the burglary witness had cleaned up prosecutor’s room, and closed the door, and that thereafter on the same morning he saw defendant coming from the direction of the flats, and that after learning of the burglary, defendant not having come to dinner, witness went with an officer to search for him, but failed to find him, was admissible.
    [Ed. Note — For other cases, see Burglary, Cent. Dig. § 90; Dee. Dig. § 36.]
    2. Burglary (§ 46) — Instructions—Conformity to Facts and Evidence — Stolen Property.
    In a trial for burglary, where defendant did not at the time of his arrest or at any other time give any explanation of his possession of the stolen property, failure to charge on that issue was not error.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.]
    3. Burglary (§ 46) — Instructions—“Breaking.”
    In a trial for burglary that the court in defining burglary gave the statutory definition was not error, where, in a charge applicable to defendant, it instructed that by the term “breaking” was meant that the entry must be made with actual force, and that, as the burglary was alleged to have taken place in the daytime, the jury must be satisfied beyond a reasonable doubt that the entry was made by force in the daytime, or they could not convict.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.
    
    For other definitions, see Words and Phrases, vol. 1, pp. 862-866; vol. 8, pp. 7592, 7593.]
    4. Criminal Law (§ 787) — 1Trial—Instruc-tions — Failure of Accused to Testify.
    In a criminal trial, an instruction that the jury should not consider as a circumstance against accused the fact that he failed to testify in his own behalf was proper.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1902, 1903; Dec. Dig. § 787.*]
    5. Burglary (§ 41) — Sufficiency of Evidence.
    In a burglary trial, evidence held to warrant a conviction.
    [Ed. Note. — For other eases, see Burglary, Cent. Dig. §§ 9-1-109; Dec. Dig. § 41.]
    6. Criminal 'Law (§ 1032) — Appeal—Objection Below — Misnomer.
    In a criminal trial, where defendant failed to suggest his true name when the case was called for trial, as he was entitled to do under Code Cr. Proc. arts. 548, 549, he could not on appeal complain that he was not indicted in his true name.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2627-2642; Dec. Dig. § 1032.]
    Appeal from District Court, Potter County; J. N. Browning, Judge.
    P. L. I-Cinkead was convicted of burglary, and appeals.
    Affirmed.
    James H. Robertson and J. B. Robertson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig..& Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted in the district court of Potter county, charged with the óffense of burglary. Upon a trial he was adjudged guilty and sentenced to the-penitentiary for two years.

The three bills of exception in the record, relate to a portion of the testimony of G. M. Jenkins. Mr. Jenkins testified that he was. in. charge of the Taylor Flats in Amarillo, and) rented room 14 to E. E. Young; that defendant, about a week prior to the alleged burglary, came and wanted to know if he desired to sell out; that defendant’s mother was desirous of coming to that country; that at the time of said conversation he rented room 16, adjoining the room occupied by-Young; that on the morning of the burglary he had cleaned up the rooms, and cleaned up-the room occupied by Young about 8:30 in the morning and closed the door; that thereafter on the same morning he was at the-post office and saw defendant coming from, the direction of the Taylor Flats. In the afternoon, after learning of the theft or burglary, defendant not having come to dinner, he went with an officer and searched the town of Amarillo for defendant, and failed to find; him. All this testimony was admissible, we think, when the further- fact appears that defendant was arrested in Dallam county a. day or so thereafter, and had the stolen goods in his possession. No one saw defendant enter the room from which the goods; were stolen, and the facts and circumstances are admissible, showing defendant was at the house, when he went there, when he was-seen coming from there, and the further fact of flight; that he immediately left town,, telling no one where he was going. Cooper v. State, 19 Tex. 450; Noftsinger v. State, 7 Tex. App. 301; Means v. State, 10 Tex. App. 16, 38 Am. Rep. 640.

The court did not err in refusing to give-the special charge requested. The room in-question is shown to have been rented to E.. E. Young, and he was in possession and control of same. That another was the real’ owner is immaterial, as the indictment alleged that the room burglariously entered was-then and there used and occupied as a place of residence by the person from whom the-goods were stolen, and the evidence sustains-the allegation. Sullivan v. State, 13 Tex. App. 462.

Complaint is made that the court did not charge on the possession of recently stolen, property. The record does not disclose at the time of his arrest, or at any other time, defendant gave any explanation of his possession of the stolen property, and it was not error for the court to fail to charge on this issue. Baldwin v. State, 31 Tex. Cr. R. 589, 21 S. W. 679.

The appellant complains that the court in defining burglary gave the statutory definition. In this there was no error, as the court in the charge applicable to this defendant instructed them that by the term “breaking” was meant that the entry must be made with actual force, and that, as the burglary was alleged to have taken place in the daytime, the jury must be satisfied beyond a reasonable doubt that the entry was made by'force in daytime, or they could not con.vict defendant. Sparks v. State, 34 Tex. Cr. R. 87, 29 S. W. 264.

Complaint is made that the court instructed the jury that they should not consider, as a circumstance against the defendant, the fact that he failed to testify in his own behalf. The charge given in this case is in almost the exact terms of a charge approved by this court in Unsell v. State, 45 S. W. 902.

We have carefully considered every ground of appellant’s motion for a new trial, and, in regard to the one alleging that the testimony is insufficient to support the verdict, we would say that the stolen goods were found in his possession; that he left Amarillo the day of the theft and was arrested in another place; that the morning of the theft, when Mr. Jenkins cleaned and closed the door of the room from which the goods were stolen, he was at that time in bed in an adjoining room; that he was afterwards seen coming from that direction, and, although he was boarding there, he never returned to the house, are all circumstances which, under a proper charge, as the court gave in this case, the jury would be authorized to find the defendant guilty. Barrett v. State, 33 S. W. 1085.

In regard to the suggestion that defendant was not indicted in his true name, this is immaterial. Under articles 548 and 549, C. C. P., he had a right to suggest his true name when the case was called for trial. Not having done so, he cannot for the first time complain in this court. Henry v. State, 38 Tex. Cr. R. 306, 42 S. W. 559.

The judgment is affirmed.  