
    HOLLOBAUGH v. STATE.
    (No. 8145.)
    (Court of Criminal Appeals of Texas.
    Feb. 20, 1924.)
    1. Criminal law 166i/2( 12) — Remarks of court held not comment on evidence calling for reversal.
    In a prosecution for burglary, in which corn found on defendant’s premises was very convincingly identified as that which had been stolen from the burglarized premises at the time of the burglary, the action of the court in discussing the admissibility of certain evidence in, referring to “his com” (meaning the prosecuting witness’) held not to call for a reversal; there being no showing of any claim of ownership on the part of defendant.
    2. Criminal law <§=>l 170½(2)— Objection to question held obviated by oharacter of answer.
    Overruling objection to a question as calling for a statement of accused after arrest held. not to present error, where the .answer given contained no such statement.
    Appeal from District Court, Potter County; Henry S. Bishop, Judge.
    Victor Hollobaugh was convicted of burglary, and he appeals.
    Affirmed.
    A. M. Mood, of Amarillo, for appellant.
    Tom Garrard, State’s Atty., and Grover O. Morris, Asst. State’s Atty., both of Austin, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Potter county of burglary, and his punishment fixed at two years in the penitentiary.

Mr. Scott with a partner were engaged in the dairy business, and had purchased a large quantity of com through Mr. IVrather from Mr. Hunter. Scott’s barn was entered and a quantity of the corn in sacks removed, and a trail of corn and tracks led down to where an automobile had stood. At one place there were evidences that a sack of corn had come open and some of its eon-tents which had escaped were scraped up. Shortly after the loss of the corn upon information received Mr. Scott obtained a search warrant and went with officers to appellant’s barn and there found five full sacks and one partially filled; the contents being the corn belonging to Mr. Scott which had been taken from his barn, same being identified by Mr. Scott, his partner, Mr. Wrather, and Mr. Hunter. One sack -had in it clods and dirt similar to that at Scott’s place. Their description of the corn appears so complete and convincing ■ that but little, if any, doubt could remain as to its identity. It was mixed corn, about one-fourth being red and the remainder yellow and white.

While the state was making out its case in chief and before any evidence on behalf of appellant had been introduced, a question was asked state witness Scott by the district attorney which to the learned trial judge seemed to call for testimony believed by him inadmissible because the accused was under arrest. A colloquy arose in which the court stated that the evidence was inadmissible because “they had already found the corn.” Appellant’s counsel objected to the court saying they had found “his corn.” The court replied, “Well, they found those five sacks of corn that he brought in.” To this counsel also objected, and, in the reply of the court to this, reference was made to the corn as “his corn * * * these sacks of corn that they brought in.” It was stated by the trial court that this was not a comment on the weight of th.e evidence and not intended to be. To this remark also an exception was taken as being a comment on the weight of the evidence. No charge was asked on behalf of appellant in reference to the matter. While we regard the remark of the court as referring to Mr. Scott’s corn, still we are not able to conclude that it was such comment Avhen made at the time and under the circumstances as should -cause a reversal of this case. As stated above, appellant had introduced no evidence in support of any claim of ownership on his part of the said corn.

We are also of opinion from the whole record that it appears to be so clearly established that the corn was the corn of Scott and taken in said burglary, that the remark made by the court, if open to appellant’s objection, would not be sufficient to call for reversal. Rodriguez v. State, 23 Tex. App. 503, 5 S. W. 255; Young v. State, 31 Tex. Cr. R. 24, 19 S. W. 431; Newman v. State (Tex. Cr. App.) 64 S. W. 259; Pilgrim v. State, 59 Tex. Cr. R. 231, 128 S. W. 128; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 167; Williams v. State, 67 Tex. Cr. R. 287, 148 S. W. 763; Wilson v. State, 70 Tex. Cr. R. 627, 158 S. W. 512; Echols v. State, 75 Tex. Cr. R. 369, 170 S. W. 786.

The only other bill was taken . to a question to witness Scott' as follows: “Where did you mean that you didn’t see any red corn?” to which he replied, “Well, he was asked to show some red corn "where he stated he shelled this corn in the old house.” This seems to set out an answer of the witness to the question objected to, which does not contain any statement of appellant, and therefore presents no support to the objection made that the accused was under arrest at the time. We do not think this presents any error.

Appellant appearing to have had a fair trial, the judgment will be affirmed. 
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