
    SANDEL v. STATE.
    (No. 10869.)
    Court of Criminal Appeals of Texas.
    June 22, 1927.
    Rehearing Denied Oct. 12, 1927.
    1. Burglary <@=>28(6) — Admission of alleged owner’s testimony that he had possession of burglarized store as administrator held not error.
    Admission of prosecuting witness’ testimony that he had possession of burglarized store as administrator of his deceased sister’s estate held not error because indictment alleged that he was owner, in view of proof that he had actual care, custody, and control thereof.
    2. Burglary <S=>22 — Ownership of burglarized building may be alleged in person having actual control.
    Ownership of burglarized building may be alleged in person having actual care, control, and management thereof, and it is not necessary to allege in whom title is.
    
      3. Criminal law &wkey;400 (7) — Administrator’s' testimony that decedent willed property to heirs held admissible, under indictment alleging witness’ control of burglarized store, as against contention that will was best evidence.
    In burglary trial, prosecuting witness’ testimony that his sister had willed property to heirs and that title to goods Jnken from store had passed to them, but that he was administrator of her estate, held admissible, under indictment alleging that building was occupied and controlled by him, as against contention that will was best evidence unless destroyed or misplaced.
    4. Criminal law &wkey;1169(1) — Administrator’s testimony that decedent willed property to heirs held not injurious to defendant in burglary trial, though foreign to issue of witness’ control of building.
    Prosecuting witness’ testimony in burglary trial, that his sister had willed property to heirs and that title to goods in burglarized store had passed to them, but that he was administrator of her estate, held not injurious to defendant, though foreign to issue of witness’ occupation and control of building.
    5. Criminal law &wkey;> 1144(14) — Charge is presumed proper, in absence of objection in record.
    In absence of objection in record to court’s charge, it is presumed that trial judge properly charged the law.
    On Motion for Kehearing.
    6. Criminal law <&wkey;>693, 1091 (Iff) — Objection to evidence that defendant pointed out whereabouts of stolen property while under arrest should be made at time and shown and supported in bill of exceptions.
    In order properly to bring before appellate court complaint that evidence that defendant pointed out whereabouts of stolen property was inadmissible in burglary trial, if he was carried to premises while under arrest and induced to point out place, objection should have been made at time and shown and supported in proper bill of exceptions.
    Commissioners’ Decision.
    Appeal from District Court, Walker County; Carl T. Harper, Judge.
    Harry Sandel was convicted of burglary, and he appeals.
    Affirmed.
    M. E. Gates and E. T. Burns, both of Huntsville, for appellant.
    ■ Sam D. Stinson, State’s Atty., and Kobt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted for the offense of burglary and sentenced to two years in the penitentiary.

The uncontradicted evidence shows that on or about January 30, 1926, appellant and the accomplice witness, Monroe Craft, broke into and entered the store occupied and controlled by W. T. Taylor and took therefrom various and sundry articles of merchandise. The sheriff afterwards recovered most of said articles from the possession of the appellant, same having been pointed out to the sheriff by appellant on his premises.

There are in the record for our consideration but two bills of exception. Bill of Exception No. 2 complains that the state, over appellant’s objection, was permitted to prove by the prosecuting witness, W. T. Taylor, that he was acting in the capacity of administrator of the estate of his deceased sister, Mrs. E. M. Pace, and that in said capacity he had the possession of the house which is alleged to have been burglarized. Appellant objected to this testimony because the indictment did not allege that Taylor was holding possession as administrator, but that it alleged he was the owner of said building. We are unable to agree with appellant’s contention. It has been frequently held that ownership may be alleged in the person having actual care, control, and management of the house alleged to have been burglarized, and it is not necessary to allege in .whom the title is. The capacity in which the said Taylor controlled the house is immaterial, inasmuch as it was proved that he had the actual care, custody, and control thereof. This was all that was necessary.

Appellant’s bill of exception No. 8 complains that the state, over his objection, was permitted to prove by the prosecuting witness, W. T. Taylor, that Taylor’s sister, Mrs. Pace, had made a will and - had willed the property to the different heirs and that the will had been probated before the burglary and that the title to the respective goods had passed to the respective heirs, but that Taylor was administrator of the estate. This testimony was objected to because, if there was a will, the will itself was the best evidence, and that secondary evidence of the contents of the will was not admissible unless the will had been destroyed or misplaced. We are unable to agree with this contention. It was only necessary that the indictment allege that the house was occupied and controlled by W. T. Taylor. The state alleged and proved this. The evidence complained of, while foreign to the question at issue, could not have injured the appellant in any manner. Vernon’s Penal Code, art. 1390, note 11; Branch’s Penal Code, p. 1271-A§ 2324.

There being in the record no objection to the court’s charge, it is presumed the learned trial judge properly charged the law. The facts being amply sufficient to support the verdict, the judgment of the trial court is affirmed.

PEE CTJEIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the. Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

The only two matters complained of by bills of exception are correctly decided in our original opinion. It is contended in the motion for rehearing that if the appellant was carried to his premises while under arrest and was induced to point out the whereabouts of the stolen property, such evidence would be inadmissible. In order to bring such a complaint properly before us, an objection should have been made at the time and same shown and supported in a proper bill of exceptions. Not only in the testimony of the accomplice but also in the confession of the appellant does it appear that subsequent 'to the first burglary appellant and the accomplice went again to the alleged burglarized premises which were then re-entered by them by force. It thus appears that the burglary at night as well as in the daytime was by the use of force to the building.

There being nothing in the complaints made, the motion for rehearing will be overruled. 
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