
    FLORES v. STATE.
    (No. 10042.)
    (Court of Criminal Appeals of Texas.
    April 7, 1926.
    Rehearing Denied May 26, 1926. V
    1. Burglary <&wkey;>45 — Whether defendant was attempting to burglarize or had gone to rear of .store to answer call of nature was for jury.
    . Where, in prosecution for attempt to commit burglary, officer testified that defendant was kneeling on sack boring holes in rear door of store and fled when flash light fell on him, and defendant testified he had gone there to answer call of nature, conflict was for jury.
    2. Criminal law <§^723(l) — District attorney’s comment, in prosecution for attempt to burglarize, that, if jury returns verdict of guilty with suspended sentence, business men must protect themselves, held not reversible error.
    District attorney’s comment, in prosecution for attempt to commit burglary, that, if jury believed defendant’s unreasonable story, be wanted verdict of not guilty rather than verdict with suspended sentence, because, if latter, business men could not rely on juries for protection, but must protect themselves, held not reversible error.
    3. Criminal law &wkey;>763, 764(8) — Refusal to charge jury to acquit in prosecution for attempt to burglarize, if defendant’s explanation when presence was first questioned was probably true and consistent with innocence, held not error, under evidence.
    Refusal to charge, in prosecution for attempt to commit burglary, that, if defendant’s explanation of his presence when found at store was reasonable and probably true, and accounted for presence in manner consistent with innocence, jury should acquit, held not error, where officer testified defendant was boring holes in store door and fled when flash light fell on him.
    Appeal from District Oourt, Val Verde County; Joseph Jones,-Judge.
    Arturo Flores was convicted of an attempt to commit burglary, and he appeals.
    Affirmed.
    I Grady Lowrey, of Del Rio, for appellants
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeck, for the State.
   MORROW, P. J.

The offense is an attempt to commit burglary; punishment fixed at confinement in the penitentiary for a period of two years.

According to the testimony of Tom Turk, a watchman, he observed the appellant about 11:30 o’clock at night in the rear of the store of Max Stool. With the aid of a flash light, Turk observed the appellant on his knees, boring a hole in the door. 'When the light fell upon him, appellant fled. Turk pursued the appellant, and finally took him in charge. After the arrest, appellant was conducted to the door mentioned, and there, according to Turk, was found a sack upon which appellant had been kneeling. Three holes were bored in the door, each hole connecting the other. In the door there was a bit attached to a brace; this brace and bit being the instrument used in boring the holes. There was testimony showing the location of the holes in the door, which testimony tended to support the state’s theory that by boring holes the panel could have been removed. The nonconsent of the owner was proved.

According to the apellant’s testimony, after attending a dance and while seeking a place where he could get a cheap bed upon which to spend the night, he went to the place near which he was arrested for the purpose of answering a call of nature. As he approached, he saw two Mexicans leave, and shortly thereafter the watchman appeared. Appellant, in his testimony, explained the reason for his presence as above, and said that he had not been at the door where the brace and bit were found, but only went to an outhouse near by. He disclaimed any ownership or knowledge of the brace and bit, or any effort to burglarize the house. Appellant introduced testimony to the effect that he bore a good reputation as a law-abiding citizen.

In the record we find a bill of exceptions complaining of the argument of the district attorney. In qualifying the bill, the court suggested that the remarks were responsive to those of the appellant’s counsel, and sets out the remarks as follows:

“Mr. Lowrey has requested this jury to give this defendant, if he is convicted, a suspended sentence, for the reason that Tom Turk’s testimony against this defendant is unreasonable. Now, gentlemen of the jury, I am going to say to you that, if you are not going to believe the testimony of Tom Turk, who is an officer of the law and employed by the business men of this city, and you do believe the unreasonable story told by this defendant on the witness stand, then I am going to say that I would rather you would — I want you to bring in a verdict of not guilty rather than a verdict’ with a suspended sentence, because, if this jury brings in a verdict of guilty with suspended sentence, the business men of this town, you, Mr. Clayton, and other business men of this town, cannot rely upon juries'for protection, but must protect themselves.”

The state’s witness testified that he was employed to watch the store at night, and that it was his duty to turn a key in a clock every hour as he made his rounds; that he had been to the door in question about an hour before heT'eturned and observed the appellant there in the act of boring holes in the door. The fact that appellant was at the "door was controverted toy his testimony. The eonflict^between them was for the solution of the jury. The issues relating to the suspension of the sentence were before the jury and proper subject of debate. The argument, while not commended, viewed in the light of the' testimony and the court’s explanation thereof, we think was not so beyond the scope of legitimate debate as would authorize a reversal of the judgment.

Appellant requested a ^charge from which we quote:

“ * * * And when his presence was first questioned he made an explanation of how he came to be at said place, and you believe that such explanation is reasonable and probably true and accounted for defendant’s presence in a manner' consistent with his innocence, then you will consider such explanation as true and acquit the defendant.”

The state’s witness declared on crossexaminatipn that appellant did not say that he was answering a call of nature, but said that he was “looking for somé paper to make a bed to sleep on.” Nor did the appellant testify that he made at the time of his arrest any declaration explanatory of his presence. In his testimony given on the trial, he explained it with the statement that he was urinating, and for that reason he did not respond when the state’s witness first called him. The officer’s testimony was direct to the point that when he threw a flash light upon the appellant he was kneeling at the door and was boring in it; also that there was a sack on.the ground near the door upon which appellant was kneeling; that appellant fled, and only submitted to arrest when the officer called to his supposed companion to aid in apprehending him. 'With the facts before him, we think the trial court was not in error in refusing to'give the special charge mentioned.

It would have been appropriate to instruct the jury, in substance, that, if the appellant was at the place where he was found for the purpose of answering a call of nature and was not engaged in an attempt to burglarize the store, he should be acquitted. Branch’s Ann. Tex. P. C. § 2465; McWhorter v. State, 11 Tex. App. 585. There was no request, however, for any charge of that nature, nor exception to the charge for any. omission. The charge given, embracing as it does the law of circumstantial evidence, carrying with i it the burden incident to that character of testimony, is believed sufficient to protect the appellant’s rights.

Finding no error authorizing a reversal, the judgment is affirmed.

On Motion for Rehearing.,

LATTIMORE, J.

"In urging that we erred in holding the refusal of a special charge not ’ erroneous, appellant loses sight of the fact that we have never extended the proposition embraced in said charge beyond its application to cases of theft or burglary wherein the state ■ sought conviction relying on the circumstance of possession of recently stolen property. The special charge referred to is quoted in our original opinion. No issue as to the possession of recently ■ stolen property was in this case. The state did not introduce such proof. The presence of the appellant at or near the house alleged to be the subject of his effort to commit burglary was not alone relied on. We stated in our former opinion that, according to the state’s testimony, appellant had a sack on the ground in front of the door on which he was kneeling while boring holes into the door of the building. He fled when the flash light of the officer fell on him. These facts go beyond the question of mere presence. We think our former opinion correct.

The motion for rehearing will be overruled.  