
    KENDRICK v. STATE.
    (No. 9236.)
    (Court of Criminal Appeals of Texas.
    June 24, 1925.)
    1. Criminal law <&wkey;829(l), 1186(4) — Refusal to giive requested charge held not error, where proposition was covered by charge already given.
    In prosecution for burglary, refusal to give requested instruction held not error, in view of Code Or. Proc. 1911, art. 743, where proposition was covered by instructions already given, and it appeared that such refusal was not calculated to injure the right of the defendant, and that he was precluded from having a fair and impartial trial.
    2. Witnesses &wkey;>374(2) — Testimony held admissible for impeaching witness and showing his interest in case.
    In prosecution for burglary, where it was contended that defendant entered house burglarized to get some “choc” beer, testimony of A. while under the rule that B., another witness, had told A. he hated to testify, but he had stated about the defendant and witness haying some beer in house robbed, and that he wanted A. to testify to the same thing, held proper for purpose . of impeaching witness B. and showing his interest in the case.
    3. Criminal law t&wkey;>537 — Testimony of officer to conversation with defendant while in jail held admissible as statements of facts found to be true.
    In prosecution for burglary, testimony by officer to conversation had with defendant while in. jail that defendant told him he had left watch stolen at certain jewelry store, held admissible under Code Cr. Proc. 1911, art. 810, as “statements of facts or circumstances that are found to be true, which conduce to establish his guilt.”
    4. Criminal law <&wkey;35l (3) — Testimony held ad- ■ missibie on question of flight.
    In prosecution for burglary, testimony of sheriff relative to what defendant told him concerning making of his bond for appearance, and that instead of coming in to make bond defendant had gone to a different state, held admissible on question of flight, where it appeared that defendant did go to such other state and was not present when case was called.
    5. Criminal law <&wkey;670— In burglary prosecution, testimony that defendant and owner of house burglarized made beer together and kept it in such house held properly excluded.
    In prosecution for burglary of house, where it was contended that defendant entered house to get beer owned jointly by defendant and owner of house, testimony that defendant and owner made beer together, and kept it in ice box in owner’s house, held properly excluded, where there was no showing as to what time witness would state beer was kept in the house.
    6. Criminal law <5&wkey;448(2) — Testimony that certain person was the only one who knew how to make beer properly excluded as a conclusion.
    In prosecution for burglary, where it was contended that defendant entered house burglarized to get beer owned jointly by defendant and owner of house, testimony that the owner was the only one that knew how to make beer properly excluded as a conclusion.
    7. Criminal law <&wkey;>llll(3) — Bill of exceptions held to disclose no error in refusing defendant, in burglary prosecution, to testify as to why he entered house burglarized.
    Bill of exceptions held to disclose no error in refusing to permit defendant, in burglary prosecution, to testify as to why he entered house, where qualification to bill made by court and accepted by defendant’s counsel showed that defendant was permitted to show for what purpose he entered house, and that defendant did so testify.
    Commissioners’ Decision.
    Appeal from District Court, Stephens County; C. O. Hamlin, Judge.
    ■ Pat Kendrick was convicted of burglary, and he appeals.
    Affirmed.
    T. B. Ridgell, of Breckenridge, and T. H. McGregor and A. B. Dove, both of Austin, for appellant.
    Tom Garrard, .State’s Atty., and Grover C. Morris, Asst. State’s Atty., both af Austin, for the State.
   BAKER, J.

The appellant was indicted and convicted in the district court of Stephens county for the offense of burglary, and his punishment assessed at two years in the penitentiary. ,

Briefly stated, the record discloses the facts to be that the appellant entered the house of one O. E. Allen and stole therefrom a watch, chain, and a ring without the consent and knowledge of the said Allen. This was the testimony of the state, and upon the part of the defendant it was contended, and the testimony was introduced in support thereof, that the witness Allen and the appellant had “choc” beer which they had made, and same was being kept in the house of the prosecuting witness Allen,, and had some pecans therein, and that the appellant, one Butler, and a brother-in-law of Allen, Wallace, had a key that would unlock the door of the house and residence of said Allen, and on the day of the alleged burglary the appellant contended that Wallace gave him a key and instructed him to go into the house and get some beer, and that he did so, and, after he had gotten into the house, and observed the watch, chain, and ring, he conceived the idea of stealing same, but had no intention of committing theft until after he entered said house. This is a sufficient statement of the facts for the basis of this opinion.

The appellant urges 17 objections and exceptions to the court’s charge, practically all of which urge that same is upon the weight of the evidence, not the law of the case, do not present defendant’s defense, and prejudicial. The record discloses the court at the request of the defendant gave his special charge No. 1 covering his phase of the case to the effect that, if the jury believed from the evidence at the time the property was taken that the defendant had been instructed by one Wallace to go into the house and get some beer or pecans, either or both, and that if the defendant believed that said Wallace had the authority to give such instructions, and, acting thereunder, entered said house for said purpose, and did not enter the house to commit theft or a felony, and, after entering the house, conceived the idea of taking the property in question, then in that event or if they had a reasonable doubt thereof, to acquit the defendant. This special charge, given at the instance of the appellant, together with the court’s general charge to the effect that before the jury would be warranted in finding the defendant guilty they must be satisfied beyond a reasonable doubt, that the entry was made in the daytime, by force, “and with the intent to commit the specific crime of theft,” fully covered this phase of the ease raised by the evidence of the defendant. However, appellant strenuously insists that the court was -in error in refusing to give his special charge No. 2, which was to the effect that, if the defendant entered the house with a key furnished him by said Wallace, and was instructed by said Wallace to go into said house, and honestly believed that he had authority to ente^ said house, and, acting under such authority, he unlocked the door, then to find the defendant not guilty. We are of the opinion that there was no error in the refusal of this charge, in view of the special charge given and the charge of court was hereinbefore mentioned, and especially a failure to give said charge, we think, was not reversible error, and, viewing the whole record, we are unable to say that such refusal was calculated to injure the rights of the defendant, or that he was precluded from having a fair and impartial trial thereby. Article 743, O. O. P., prohibits this court from reversing the judgment on such matters, unless the error appearing from the record was calculated to injure the rights of the defendant, or it appears therefrom that he had not had a fair and impartial trial.

Bill of exception No. 1 complains of the action of the court in permitting the witness Allen to testify that the defendant’s brother-in-law Butler had a conversation with him while the witness was under the rule to the effect that he, Butler, hated to testify, but he had stated about the defendant and witness having some beer in Allen’s house, and that he wanted said Allen to testify to the same thing, because the defendant was not present. The court, in qualifying said bill, states that it was admitted for the purpose of impeaching the credibility of Butler and showing his interest in the case. We are unable to see any error of the court as complained of in this bill.

It is complained in bill of exception No. 2 to the action of the court in permitting the officer Bendy to testify to a conversation had with the appellant while in jail to the effect that the appellant told him that he had left the watch in question at the jewelry store, and, if the witness would go there, he could get it, and that said witness went with the defendant to the jewelry store, and got the watch; it being urged that said testimony was inadmissible under article 810, O. O. P., relative to confessions of the defendant, but under the following portion of said article we think it admissible:

“Unless in connection with said confession, he makes statements of facts or circumstances that are found to be true, which conduce to establish his guilt, such as the finding of secreted or stolen property,” etc.

In bill of exception No. 3 complaint is made to the action of the court in permitting the sheriff to testify relative to what the defendant told him about coming in and making his bond and waiting for him to come in and make his bond for appearance, and that he found out that instead of coming in to make his bond he had gone to Oklahoma. The bill discloses the objection to this testimony was that the same was immaterial and irrelevant. The court qualifies said bill by stating that it was admitted on the question of flight. We fail to see any error in the admission of this testimony as presented in the bill, and, furthermore, the undisputed testimony shows that the defendant did go to Oklahoma and was not present in the court when his case was called. Under this phase of the case there could possibly be no error' in this particular.

In bill No. 4 complaint is made to the court’s refusal to permit the witness Mrs. Butler to testify that O. E. Allen was the only one that knew how to make beer, and he and the defendant together made beer, and kept it in the ice box in Allen’s house. The witness Allen admitted that, while he did not have any beer in the house at the time the premises were alleged to have been burglarized, he had “choc” beer in his house pri- or thereto, and the neighbors were interested in it, and that they all drank it, and, in view of said testimony and the record showing those facts, and the bill failing to show at what time the witness would state the beer was kept in said house, there could possibly be no error in the ruling of the court thereon, and that portion of the bill complaining of the said witness not being permitted to testify that Allen was the only one that knew how to make beer would involve clearly a conclusion and opinion of the' witness, and for the reasons above mentioned we see no error in the court’s refusing to permit said testimony to go to the jury.

In bill of exceptions No. 5 complaint is made to the court’s action in refusing to permit the defendant to testify as to how he came to go into the house. The qualification made by the court to said bill shows that the court stated to counsel as follows: “I will permit you to show what he went in there for.” This qualification, which was accepted by appellant’s counsel, eliminates any objection urged in the bill; besides, the record discloses that the appellant testified the purpose for which he went in the house.

The same objection is urged in bill 6. With the same qualification attached thereto, what has been said relative to bill No. 5 applies to this bill.

Practically the same objection is urged in bill 7, and the court in qualifying said bill states: The defendant was permitted to testify that he went in the house “for some beer; that said beer was in the ice box.” There is no error shown in said bill.

We have carefully examined the record in this case, and fail to find any reversible error made by the trial court, and it is our opinion that this case should be affirmed, and it is accordingly so ordered.

PER- CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the'Court of Criminal Appeals, and has been approved by the court. 
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