
    JORDAN v. STATE.
    (No. 8020.)
    (Court of Criminal Appeals of Texas.
    March 5, 1924.)
    I..Burglary &wkey;»42 (I) — Possession of recently stolen property not sufficient to justify conviction of burglary.
    Mere possession of recently stolen property, although identified, without evidence of a breaking of the house or car from which it was taken, is not sufficient to authorize conviction for burglary.
    2. Burglary <&wkey;4l (I) — Evidence held insufficient to make case, of burglary of lard from freight car.
    Where lard, alleged to have been stolen from a freight car, was not identified, and evidence failed to show that the freight car which may have been burglarized Whs the same car in which shipments of lard were made, there was a failure to make a case of burglary from a railroad car.
    3. Criminal law <&wkey;369(7) — In burglary prosecution, admitting evidence of other similar burglaries with which defendant not shown to be connected held error.
    In prosecution for. burglary of a railroad car, permitting state to prove, by special agent of the railroad company, that about and just before defendant’s arrest several box car burglaries were reported and that the witness was investigating all of them at the time of defendant’s arrest, there being no evidence connecting defendant with such reported burglaries, was error.
    4. Criminal law <&wkey;l 169(5) — Improper question and answer held not cured by instruction to disregard.
    In prosecution for burglary of a railroad freight car, where special agent of railroad company had been improperly allowed to state that he was investigating a report of a number of box ear burglaries at the time defendant was arrested, and, before objection to question whether since his investigation there had been any burglaries since defendant’s arrest could be sustained, witness answered, “No,” an instruction to the jury not to consider such question or answer could not cure their harmful effect.
    Appeal from District Court, Cass County; Hugh Carney, Judge.
    Dave Jordan was convicted of burglary of a railroad car, and he appeals.
    Reversed and remanded. .
    Bartlett & .Patman, of Linden, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   HAWKINS, J.

Conviction is for burglary of a railroad car, with punishment of two years’ confinement in the penitentiary.

Appellant raises a serious question as to the sufficiency of the evidence. The offense is supposed to have occurred at Hughes Springs in. Cass county, and to have consisted of breaking into a railroad car and taking therefrom two cases of lard, part of a shipment in transit from Texarkana to Con-nor Bros, at Daingerfield. Connor Bros, had ordered from a wholesale grocery company at Texarkana fifteen cases of “Orange” brand lard. • There is no evidence in this record showing the number of cases of lard nor kind which were started in transit from Texarkana. The first information we have of the matter from the record is from the witness Gilbert, who checked the shipment from the Texas & Pacific Railroad at Jefferson to the Missouri, Kansas & Texas Railroad at that point. This witness personally made the check and says fifteen cases of lard went into Missouri, Kansas & Texas car No. 90185. The brand of lard so checked is not given by this witness. Gilbert sealed the doors of the car at Jefferson with seal Nos. 869912 and 369922. This was done about March 20, 1922.

The car in- question seems to have contained local freight, and was subject to be opened at any point on the line of road to which merchandise contained therein was destined. On March 23d a car was set out on .the house track at Hughes Springs. This car is neither identified by number nor by tracing the seals as the car in which the shipment of lard was 'checked at Jefferson. The witness Pinson, who checked out merchandise billed to Hughes Springs, described this car as Missouri, Kansas & Texas car No. 91805. The seals on the doors when it reached Hughes Springs were Nos. 3697021 and 3692022. Both doors of the car may have been legally and regularly opened and resealed between Jefferson and Hughes Springs, and if this had been shown it would account for the change in the numbers of the seals, but would in no, way account for the discrepancy in the number of the car. Pinson only disturbed one seal, which was 3692022, and, after checking out the merchandise, he resealed the door which he had opened with seal No. 372147. This work was done by Pinson between 9 and 12 o’clock on one day, and the car remained at Hughes Springs until some time the next day, when it was picked up and taken out on a train in charge of Conductor Hooton.

Hooton’s testimony shows that he picked up Missouri, Kansas & Texas car No. 91805 at Hughes Springs, and at the time it was placed in his train the seals on the doors of the car were 97712 and 372147; it thus appearing that since the car had been resealed by Pinson seal 97712 had been substituted for seal 3697021. The evidence further shows that among the seals which had been apportioned to the station at Hughes Springs was included No. 97712. This seal had never been used by any party authorized to use them.

P. N. Moore, the railroad agent at Dain-gerfield, checked out of a car at that point thirteen cases of “Orange” brand lard billed to Connor Bros., and from the waybill there appears to have been two cases missing. Moore does not give the name or number of the car, and therefore it is not identified in that manner or as the car which contained the shipment when it left Jefferson as the one which was “set out” at Hughes Springs. He only examined the seal on the door which was opened by him,, and he says this seal number was 371142. It will be observed that this number does not correspond with either of the numbers on the car when picked up by Hooton at Hughes Springs. In other words, if a car was burglarized at Hughes Springs, the evidence in the record fails to show that it was the same car in which the shipment of lard to Connor Bros, was checked at Jefférson. Without establishing the burglary of this particular car, the state’s case must fail, because it is on the shortage of the shipment of lard discovered at Daingerfield that the state bases its case.

Officers at Hughes Springs searched appellant’s house on April 6th, and in a loft over the dining room found six buckets of “Orange” brand lard. Entrance to this loft was had by crawling through a hole in the ceiling. These buckets had never been opened. If these six buckets of lard came out of the Connor Bros.’ shipment, it would account for one missing case, but leaves the other missing case entirely unaccounted for. There was no attempt to identify this lard as being part of the Connor Bros.’ shipment save that it was the same brand of lard, and the general circumstances surrounding the transaction. Appellant introduced no evidence whatever, appearing to have relied on the state’s failure to make out its case. The finding of the lard in appellant’s house in an unusual place might justify the inference that his possession thereof was not consistent with innocence, but did it justify the conclusion that he was guilty of burglary? The.mere possession of recently stolen property, although identified, without evidence of a breaking of the house or car from which it is taken, is not sufficient to authorize a conviction for burglary. Strickland v. State (Tex. Cr. App.) 78 S. W. 689; Williams v. State, 70 Tex. Cr. R. 275, 156 S. W. 938. Where the property is not identified, and the evidence also fails to show that the car which may have been burglarized at Hughes Springs was the same car in which the shipment of lard to Connor Bros, left Jefferson, it appears to present a failure on the part of the state to make out its case.

In the event ofi another trial, there is another matter to which we adverts Over appellant’s objection, the state was permitted to prove by the witness Smith, special agent of the railroad company, that about the time and jqst before the arrest of appellant several box car burglaries were reported to him as having occurred at Hughes Springs, and that he (Smith) was at that point investigating all of them at the time appellant was arrested. There is no evidence connecting appellant with these reported burglaries, apd we find nothing which exempts proof thereof from the rule ordinarily excluding evidence of extraneous crimes. The error in admitting such proof becomes more serious from what immediately followed. Directly after Smith had testi-fled to the report of several burglaries having occurred at Hughes Springs, the district attorney asked him in that connection the following question. “Since you made the investigation of the box car burglaries at Hughes Springs about the 1st of April, about the time the defendant was' arrested, have there been any subsequent burglaries at Hughes Springs?” Appellant objected to the question as soon as it was asked, but, before the court had time to sustain the objection, the witness answered, “No.” The court realized that the evidence was objectionable and did all within his power to correct the matter by instructing the jury not to consider the question or answer. Taken in connection with the proof as to other burglaries we believe the court could not remedy the injury, ■which is apparent without argument. The answer was in response to a question which the district attorney ought not to have asked. The clear inference sought to be obtained was that numbers of burglaries having occurred at Hughes Springs and having ceased immediately upon the arrest of appellant, therefore, he must have been the perpetrator of the burglaries. It is not unlikely this inference was drawn by the jury from the evidence improperly before them. Its harmful character is apparent.

For the errors discussed, the judgment must be reversed, and the cause remanded. 
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