Appellant was convicted of burglary and his punishment assessed at five years confinement in the penitentiary.
The facts in this case show that the prosecuting witness, being a married man, took off his pants between nine and ten o'clock at night and hung them on the back of a chair in the room of his private residence within about two feet of an open window; that no one, however, could get the pants without getting inside the house or getting a portion of his body in the room and lifting them out with something. No one could hold on the wall and reach his body around in the room far enough to have gotten them that way; even then his body would have to be inside to get the pants, or he lifted them out with a stick or something of that sort. Appellant was subsequently found in possession of the pants, worth about $6 or $8. Prosecuting witness about six or seven o'clock in the morning discovered his pants were gone.
Appellant asked the court to charge the jury as follows: "You are instructed that before you can convict the defendant in this case you must believe and find from the evidence before you, beyond a reasonable doubt, that the defendant entered the house of A.K. Wilson by applying actual force to the building and unless you so find you should acquit." We do not think the court erred in refusing this charge, since the evidence shows it was a night-time burglary.
Appellant also complains that the court erred in not telling the jury that the mere possession of stolen property taken from a house alleged to have been burglarized is not sufficient alone to convict of burglary, but is only a circumstance to be taken in connection with other facts. There is no error in the refusal of this charge.
Appellant also complains of the court giving the following charge to the jury: "An entry in burglary may be constituted by the introduction of any instrument into the house for the purpose of taking from the house any personal property although no part of the body of the offender should be introduced. It is not necessary that there should be any actual breaking when the entry is made in the nighttime, but there must be some degree of force; however slight force *Page 113 is sufficient. The entry by a chimney or climbing through a window or the entry at any unusual place would constitute force." We do not think the court erred in giving this charge. For a discussion of this matter see Will Mason v. State, Feb., 1907.
Appellant further complains of the introduction of certain testimony, but we find no bill of exceptions in the record.
Appellant also complains that the court erred in placing the defendant on the stand as a witness for the purpose of laying a predicate for impeachment after said defendant had testified in his own behalf and had been fully cross-examined by the State and excused from the witness stand. When appellant takes the stand in his own behalf, he becomes a witness like other witnesses subject to all the rules of evidence, and there was nothing amiss in the court permitting the State to lay a predicate for his impeachment.
The court charged the jury that if they believed the defendant purchased from another the pair of pants found in his possession, to acquit him. Appellant objects to said charge on the ground that said charge negatively stated that if the jury believed defendant did not purchase the pants as testified by him, they should convict. We do not think there is any error in the charge of the court. The court properly presented the law, and the evidence in this case amply supports the verdict, and the judgment is affirmed.
Affirmed.