
    WILSON v. STATE.
    (No. 3926.)
    (Court of Criminal Appeals of Texas.
    Feb. 2, 1916.
    Rehearing Denied Feb. 16, 1916.)
    1. CRiminal Law <S^814.— Instructions — Circumstantial Evidence.
    Where the defendant was identified by a witness, who stated that she recognized him as the man who made the entry into the house, that a light was burning, and that she recognized him by the funny shape of his head and his mustache, it was not error to fail to charge on circumstantial, evidence.
    [Ed. Note. — Por other cases, see Criminal Law, Cent. Dig. §§ 1821,1833, 1839, 1860,1865, 1883, 1890, 1924, 1979-1985, 1987; Dec.Dig. <&wkey;814.]
    2. Burglary &wkey;>28 — Evidence — Issues — Want oe Consent.
    Where the indictment alleged that the burglary was made in the nighttime by force with intent to steal, and the defendant was identified by one witness as the burglar, but he denied that he was the person who burglarized the house, consent to the entry was not an issue, and, if alleged or evidence thereon was introduced, it could be treated as surplusage, since it was an attempt to prove circumstantially matters unnecessary to be proved.
    LEd. Note. — Por other cases, see Burglary, Cent. Dig. §§ 67-78; Dec. Dig. c&wkey;>28.]
    Appeal from Criminal District Court, Williamson County; A. S. Pisher, Judge.
    Barney" Wilson was convicted of burglary, and be appeals.
    Affirmed.
    Melasky & Moody, of Taylor, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, X

Appellant was convicted of burglary, and bis punishment assessed at five years’ confinement in the state penitentiary.

Appellant insists that the court erred in failing to charge on circumstantial evidence. No such charge was called for, as Miss Kelley testified that she recognized the defendant as the man who made the entry into the house; that a light was burning, and she recognized him by the funny shape of his head and his mustache. This positive identification of appellant rendered it unnecessary to charge on circumstantial evidence.

Appellant insists that, as the house was alleged, in the indictment, to belong to Will Goff, and charged that the entry was made without his consent, Goff should have been called as a witness to i>rove that he did not give consent; that want of consent could not be proven by circumstantial evidence, but if want of consent is proven by circumstantial evidence, then when such fact is proven by circumstantial evidence, it is fundamental error not to instruct the jury on the law of circumstantial evidence. In a case of burglary it is not necessary to allege nor prove want of consent to make the entry, unless such fact becomes an issue in the case. In this ease no such issue arises on the testimony. Miss Kelley positively identifies appellant as the person who made the entry and stole the clothing. Apinellant denies he is the person who burglarized the house. So consent is not an issue in the case, and in such case it was not necessary to allege nor iu-ove that the entry was made without the consent of Will Golf, and, even if alleged, such allegation in a burglary indictment may be treated as surplusage, it being unnecessary to the sufficiency of the indictment; the indictment alleging that the entry was made in the nighttime by force. State v. Williams, 41 Tex. 98; Summers v. State, 9 Tex. App. 396; Taylor v. State, 23 Tex. App. 639, 5 S. W. 141; Buchanan v. State, 24 Tex. App. 199, 5 S. W. 847; Smith v. State, 22 Tex. App. 350, 3 S. W. 238: Sampson v. State, 20 S. W. 708.

There is no allegation in the indictment that any property was in fact stolen, but only that entry was made with intent to commit theft. If the indictment contained a count charging theft, then it would have been necessary to allege and prove want of consent as to that count. But as no such allegation is made, the state was not required to call Mr. Goff as a witness and prove want of consent. And as it was unnecessary, the fact that Mrs. Goff was permitted to testify that she did not give consent, and her husband was absent on the occasion, iwould present no error. The state was making proof by circumstances of a fact that it was wholly unnecessary to prove.

The judgment is affirmed.

DAVIDSON, J., not present at consultation. 
      ig^For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     