
    THORNTON v. STATE.
    (No. 4146.)
    (Court of Criminal Appeals of Texas.
    Oct. 4, 1916.)
    1. Burglary &wkey;>23 — Indictment — Ownership of Property.
    The indictment may allege breaking and entry with intent to steal property of W., though it is owned jointly or in common by him and another.
    [E'd. Note. — For other cases, see Burglary, Cent. Dig. §§ 63-66; Dec. Dig. <5&wkey;23:]
    2. Burglary <&wkey;28(l) — Ownership of Property — Want of Consent — Pleabing and Proof.
    While, where the indictment for burglary with intent to steal property alleges ownership of the property in one of the joint owners, the state need prove want of consent only of the alleged owner, any consent of the others being for defendant to prove, it is not error to allow the state to prove their nonconsent.
    [Ed. Note. — For other cases, see Burglary, Cent. Dig. §§ 67, 78; Dec. Dig. <S=^28(1).]
    3. Criminal Law <&wkey;372(10) — Evidence of Other Crimes.
    The proof of burglary depending on circumstantial evidence, and defendant being found in possession of the property alleged to have been stolen, it may be shown that other property then found in his possession had been stolen about the same time from near the same place.
    [Ed. Note — For _ other cases, see Criminal Law, Cent. Dig. §§ 833, 834; Dec. Dig. <&wkey;> 372(10).]
    Appeal from District Court, Taylor County; W. P. Mahaffey, Special Judge.
    C. R. Thornton was convicted, and appeals.
    Affirmed.
    Cunningham & Sewell, of Abilene, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

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

There are four bills of exception, but they present but two questions for review. The first is that as the indictment alleged appellant broke and entered the house of G. H. Willbanks, with the intent to steal prop-

erty therefrom belonging to G. H. Willbanks, that the state ought to have been limited to proof of such allegations; and when the evidence showed that the property in the house was the joint property of G. H. Willbanks and J. D. Pittman, the state ought not to have been permitted to prove that there was stolen from Willbanks’ house property belonging jointly to Willbanks and Pittman, and ought not to have been permitted to prove by Pittman that he did not give his consent to appellant taking the property. It has long been the rule in this state that when property is owned in common or jointly by two or more persons the ownership may be alleged to be in all or either of them. Sara ora v. State, 4 Tex. App. 508; Calloway v. State, 7 Tex. App. 585; Terry v. State, 15 Tex. App. 69; Clark v. State, 26 Tex. App. 486, 9 S. W. 767; Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 585; Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Bailey v. State, 50 Tex. Cr. R. 402, 97 S. W. 694; Lockett v. State, 59 Tex. Cr. R. 531, 129 S. W. 627; Davis v. State, 63 Tex. Cr. R. 453, 140 S. W. 349. In Branch’s Ann. Penal Code, art. 2452, the ruléis also”stated to be:

“The state is not required to prove the want of consent of any person not mentioned in the indictment. f * • It is not error, however,” to permit it “to do so” (citing a great many authorities, among them being Skaggs v. State, 56 Tex. Cr. R. 81, 119 S. W. 106).

In this case Judge Davidson said:

“Where two or more parties may be owners of property, it is sufficient to allege the ownership in either, and the state would only be required to prove the want of consent of the alleged owner. If the others had given consent, it was a matter appellant might prove to avoid the evil or fraudulent intent in entering the house.”

While under the allegations contained in the indictment it was not necessary for the state to prove that Pittman did not give his consent to appellant taking the property, yet there was no error in permitting it to do so.

The other three bills all relate to the question of permitting the state to prove that the houses of W. O. Johnson, A. Johnson, J. H. Conner, and Jack Conner were entered and property stolen therefrom, it being contended that they each presented separate and distinct offenses, and appellant was on trial alone for breaking and entering the house of G. H. Willbanks. Ordinarily, proof of other and different offenses than the one for which one is on trial is not admissible, but there are exceptions to that rule, and the evidence in this case comes well within one of these exceptions. The facts in’ this case would show that Willbanks’ house was entered at night, and some meat stolen therefrom. Information was received that led the owners and officers to go to Anson, and in Anson they ascertained that Saturday, after Willbanks’ barn was entered, appellant and G. R. Page were in Anson, and there sold some meat, three sets of harness, and some collars, the harness and collars being sold to G. J. Chittim. When it was ascertained that appellant and Page were in Anson selling meat and this harness, appellant and Page’s residences were searched, and in their houses there was found meat corresponding to that stolen, one ham being specifically identified by Thornton as a portion of the meat stolen by the way it was cut and trimmed. The harness purchased by Chittim from appellant and Page was carried back to Abilene, and, after being carried back, the harness and collars were identified by W. O. Johnson, A. Johnson, J. I-I. Conner, and Jack Conner as property stolen from them, a portion on the same night Willbanks’ barn was burglarized, and a portion stolen the night before. All four of these gentlemen and Mr. Willbanks lived in the same neighborhood, and not a great distance from each other. Under such a state of facts, in a case depending on circumstantial evidence, it has always been held to be the rule that it is permissible to prove that when one is found in possession of the property alleged to have been stolen, it may be shown that other property then found in his possession had also been stolen at about the same time of the alleged theft and stolen from near the same place. This question was discussed by Judge Hurt in House v. State, 16 Tex. App. 31, and decided adversely to appellant’s contention in this case. See, also, Satterwhite v. State, 6 Tex. App. 613, and Wharton’s Crim. Ev. §§ 34 to 41, inclusive, and cases there cited from this and other states.

There is no other question presented in a way we are authorized to review the action of the trial court.

The judgment is affirmed. 
      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     