
    DOWLING v. STATE.
    (Court of Criminal Appeals of Texas.
    Oct. 18, 1911.)
    1. Burglary (§ 46)-tInsxruotions — “Private Residence.”
    An instruction' in a prosecution for burglary which defines “private residence” as “a building actually occupied and used as a place of residence” is not erroneous, since placing the word “actually” before the word “occupied,” instead of before the word “used,” as in the statute, does not give to the words any different meaning.
    [Ed. Note. — Eor other cases, see Burglary, Cent. Dig. §§ 111-120; Dec. Dig. § 46.
    
    For other definitions, see Words and Phrases, vol. 6, p. 5578.]
    2. Criminal Law (§ 1129) — Assignments of Error — Specifications.
    Where a charge given in a prosecution for burglary is set out, an assignment of error, in that “said definition is inaccurate, misleading and calculated to mislead the jury to defendant’s prejudice,” is too general.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2957; Dec. Dig. § 1129.]
    3. Criminal Law (§ 792) — Instructions— Principals — I ntent.
    An instruction that all persons are principals who acted together in the commission of an offense, and that where an offense is committed by one or more persons, and others are present, and, knowing the unlawful intent, aid those actually engaged in the unlawful act, such persons are principals, who may be prosecuted as such, followed by an instruction that, before defendant could be convicted, it must be found beyond a reasonable doubt that he was present “knowing the unlawful intent and aided the persons committing the offense,” aptly presents the issue as to intent.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1818-1820; Dec. Dig. § 792.]
    4. Criminal Law (§ 1038) — Appeal and Error — Harmless Error — Instructions.
    Where the charge has submitted the law applicable to the case, as required by Code Or. Proc. 1895, art. 715, a defendant who desires a more specific presentation of any issue should request special instructions thereon, otherwise the court will not reverse unless the charge was calculated to injure the right of the defendant within Code Cr. Proc. 1895, art. 723.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dee. Dig. § 1038.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Bud Dowling was convicted of burglary, and be appeals.
    Affirmed.
    Wiley & Baskett, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted by the grand jury, charged with the offense of burglary. The Indictment contained two counts; the second count charging nighttime burglary of a private residence, the entry being made with the intent to commit theft. He was adjudged guilty, and his punishment assessed at five years confinement in the penitentiary.

There are no bills of exception in the record; all the grounds relied upon being stated in the motion for a new trial. The evidence shows the entry of the private residence of Mores Sigel in the nighttime, and the taking therefrom of certain personal property, and a pistol which was taken out of a trunk in the house, the pistol being found at a place where appellant is shown to have placed it. A pistol was fired near the residence about the time of the alleged burglary, and appellant, when spoken to about it, so say the officers, said it was “old man John Johnson out there acting a fool.” This statement is denied by appellant. He admits having the pistol in his possession, and it was this pistol that was fired, but explains his possession in his testimony at the trial in a manner consistent with his innocence.

The complaint that the court erred in defining “private residence” is not well taken. The court defines those words in the charge “a building actually occupied, and used as a place of residence.” Placing the word “actually” before the word “occupied,” instead of before the word “used,” as in the statute, does not give to the words any different meaning.

Appellant complains: “This cause having been submitted to the jury on the count charging the burglary of a private residence, the court erred in his main charge to the jury in charging the jury as follows: ‘You are charged that the offense of burglary in the nighttime is constituted by entering such private residence by force and breaking, for the purpose of committing the crime of theft.’ Said definition is inaccurate, misleading, and calculated to mislead the jury to the defendant’s prejudice.” This complaint is too general, and does not attempt to point out the inaccuracy, nor in what way it could or would be misleading. In other portions of the charge the court defines “nighttime” correctly, “breaking” correctly, and the other elements constituting the offense.

The court instructed the jury: “All persons are principals who are guilty of acting together in the commission of an offense. When an offense is actually committed by one or more persons, but others are present, and, knowing the unlawful intent, aid by acts or encourage by ‘words or gestures those actually engaged in the commission of the unlawful act, such persons so aiding or encouraging are principal offenders, and may he prosecuted as such.” Appellant complains of this paragraph of the court’s charge, saying, this being an offense requiring particular intent, that this paragraph does not require the jury to find that this defendant aided and abetted In the commission of the offense with the specific intent on the part of appellant to render him guilty of the offense of burglary. In the subsequent paragraph of the charge the jury was informed: “You are therefore instructed that you are not authorized to convict this defendant, and unless you believe from the evidence beyond a reasonable doubt that the defendant himself actually committed the offense charged in the indictment, or unless you find and believe from the evidence beyond a reasonable doubt that one Jim Harris or some other person actually committed said offense, and that the defendant was present at the time knowing the unlawful intent of said Harris or other person, and that the defendant at the time co-operated with, aided, and encouraged the said Harris or other person, under circumstances constituting the defendant a principal as principal is above defined to you—if you find and believe from the evidence that the defendant either alone or in company with one Harris or some other person broke and entered said house, but if you have a reasonable doubt as to whether he intended to commit theft of the property of said Sigel lo-. cated in said house, you will acquit the defendant.” Again in the charge on circumstantial evidence the jury are told: “In such cases it is not sufficient that the circumstances coincide with, account for, and therefore render probable the guilt of the defendant. They must exclude to a moral certainty every other reasonable hypothesis,” which is followed by a charge on presumption of innocence and reasonable doubt, and, in ease the jury had a reasonable doubt of defendant’s guilt, he should be acquitted. It will be thus seen that the jury are instructed that, before they would be authorized to convict defendant, they must find beyond a reasonable doubt that appellant was present, knowing the unlawful intent, and that with such knowledge he co-operated with, aided, and encouraged the person committing the offense, but, if they had a reasonable doubt as to .whether it was the intention of appellant to commit theft of the property of Sigel, defendant would be acquitted. In the absence of special instructions being requested on this issue, we think the charge sufficiently presented the law applicable to the facts. As said in Pollard v. State, 58 Tex. Cr. R. 307, 125 S. W. 395: “The charge of the court is a fair submission of that issue, and if additional instructions were desired or further elaboration, or a more particular submission of any issue arising in the case had been desired, it may be, if the exception then interposed had directed the attention of the court to the infirmity or failure to include any feature or issue raised by the evidence, that the court would have acceded to such' suggestion.”

While the law requires the court to submit to the jury a charge in which he shall distinctly set forth the law applicable to the case, when the court has done this, if one desires a more specific presentation of any issue, special instructions should be presented to the court requesting such' instructions, and, if same is not done, this court will not reverse the case unless it appears that such action was calculated to injure the rights of the defendant. Articles 715, 723, Code Or. Proc. 1895. In this ease the matters complained of are rather hypercritical, and, inasmuch as no special instructions were requested, and from a careful reading of the record, we are of the opinion that the defendant suffered no injury, and it presents no ground that would call for a reversal of this case.

All the other grounds in the motion relate to the same matter, and as we are of the opinion that the court submitted the law applicable to the case, and that, although more specific instructions might be desirable and should have been given had they been requested, in the absence of such request, no such error is presented as should result in a reversal of the case, and the judgment is affirmed.

DAVIDSON, P. J., absent.  