Some person entered the house of H. Rich on the night of the 12th of December, 1888, and took therefrom a feather bed. Appellant was tried and convicted for burglary with intent to commit theft of the said bed.
That Rich's house was entered and the bed taken therefrom on the night of the 12th of December, 1888, is not questioned. *Page 453
A feather bed was found in the possession of defendant about the 5th day of February, 1889. The bed found in the defendant's house was claimed by Rich as the same bed which was taken on the night of the 12th of December, 1888. The defendant swore that he had purchased the bed (claimed) on the 21st or 22nd of September, 1888, which was nearly three months prior to the time of the burglary.
The court charged the jury as follows: "You are further charged, that if from the evidence you have a reasonable doubt as to whether or not the feather bed in question was the property of said Rich, you will find the defendant not guilty."
The appellant complains of the charge because it fails to instruct the jury, in substance, that if they believe from the evidence that defendant purchased the bed, or if from the evidence they have a reasonable doubt as to whether he purchased the bed, they should acquit him. The objection of appellant is, that such a charge as the above should have been submitted to the jury, and this omission in the charge is assigned as error. If appellant bought the bed at the time sworn to by him, it was not the property of Rich; and if the bed found in appellant's house and claimed by Rich was in fact his property, the defendant did not buy it in September, 1888. Hence, the issue was the identity of the bed; was it Rich's property? If so, and the jury so found, they settled the question of purchase against appellant. For they could not, under the facts of this case, have found that the bed belonged to Rich without first finding that defendant did not purchase it from a mover. The evidence of appellant, that he had purchased the bed in September, 1888, was competent and relevant. For what purpose? In this case, only for the purpose of proving that the bed claimed by Rich was not his property. This is not a case in which the accused may have come into possession of the stolen property after the theft, and hence was not guilty of the theft, and was therefore not guilty of the burglary.
In all cases in which the accused claims that he came into possession of the stolen property after theft, two issues are presented: First, Was the property found in the possession of the accused the property of the prosecutor, as alleged in the indictment? Second, Did the appellant steal the property? Now, if the jury should solve the first question against the accused, by finding that the property belonged to the prosecutor, such a finding would not solve the second question, for the property found in possession of the accused may belong to the prosecutor, and still the accused may have purchased it, or may have come into possession after the taking — theft. If the accused has introduced evidence tending to prove a purchase in explanation of his possession, the court should submit a charge in form as indicated above. But in this case a solution by the jury of the question of title solves the purchase.
We are of opinion that there was no error in the charge because of the *Page 454 omission complained of by counsel for appellant. The defendant proposed to prove that he stated to the witness, sometime in October, 1888, that he had bought a feather bed from a mover. On objection by the State, this evidence was rejected. In this there was no error. Harmon v. The State, 3 Texas Cr. App., 51, and authorities cited; also Hampton v. The State, 5 Texas Cr. App., 463.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.