Appellant was convicted of burglary and given two years in the penitentiary.
The case is one of circumstantial evidence. The office of Dr. Withers was burglarized between five and nine o'clock on the evening of the 15th of August. A suit of clothes and a lot of drugs were taken. There seems to be no question of the fact that the office was entered and that these things were taken. This was in Fort Worth, in Tarrant County. The next morning about 8 or 8:30 o'clock, in Ardmore, Oklahoma, appellant pawned the suit of clothes to a witness named *Page 8 Yaffe. He made no statement as to his possession of the goods; simply pawned them and got the money, and was immediately arrested by an officer at Ardmore who had been watching him for some time prior to his pawning these goods at Yaffe's. The details of this officer's testimony would be of no practical value, but it shows he did shadow appellant around town until he finally disposed of the goods. Appellant made no explanation and offered no testimony. So we have a case of burglary supported by circumstantial evidence with the accused in possession of the property within a few hours after the burglary was committed in an adjoining State. The evidence indicates that he could and doubtless did go upon a train that left Fort Worth about midnight, reaching Ardmore early the next morning. Convictions upon circumstantial evidence of this sort have been sustained by this court in quite a number of cases.
Bill of exceptions No. 1 recites that the assistant county attorney used this language in his argument to the jury: "He (meaning defendant) has not put on any testimony or evidence to show that he is not guilty." The bill recites that was not in answer to argument made by counsel for appellant. The objection was that it was an allusion to defendant's failure to testify on the trial. The court signs this bill with the statement that "no such language was used." The bill as thus qualified was accepted and filed. If the language was not used, then the exception will be of no value. There was no attempt to show the qualification of the judge was not correct, no bill by by-standers, and no attack made on the bill of exceptions as given.
Another bill recites that the prosecuting officer used this language: "I do not know whether the defendant is an addict. He may not have wanted to sell the drugs in question." It is recited in the bill that there had been no testimony in the record or otherwise as to whether appellant had ever been addicted to the use of narcotics, and no testimony adduced in support of that theory, and no testimony that any of the articles stolen were narcotics. This bill is signed by the judge and thus qualified: "Said above mentioned language was used by State's counsel after counsel for defendant had stated in his argument to the jury that the defendant couldn't have sold the drugs that were taken from the place burglarized and that said defendant's counsel asked said jury in his argument this question: `What in the name of God would Bert have wanted with the drugs?' Said statement of defendant's counsel to the effect that defendant could not have sold said drugs, not being supported by the evidence and being out of the record; and defendant presented no written instruction to the court requesting that said argument should not be by them considered." We are of opinion that under the qualification given by the judge there was no error shown by the language imputed to the assistant county attorney. Counsel had asked the question: "What in the name of God would Bert have wanted with the drugs," which was a matter put to the jury for their consideration. To this State's counsel it seems replied he *Page 9 did not know whether defendant was an addict and may not have wanted to sell the drugs. We are of opinion that this comment, in view of the way the matter was presented, would not require a reversal of the judgment. The argument of counsel for appellant we think opened the way for the statement of the county attorney.
Another bill recites that the prosecuting officer used this language: "Officer Brown knew Bert (the defendant) before this — and I guess he — did know him." Various objections were urged to this. The court signs the bill with the statement that "There was a sharp controversy in the testimony and argument as to whether the defendant was the man who pawned the clothes in a pawn shop in Ardmore; the said officer Brown had testified that he knew the defendant and saw him go into said pawn shop with the clothes, and the defendant's contention was that it was not defendant who pawned said clothes at said place and defendant presented no written instruction to the court requesting that same should not be considered by the jury." A reference to the facts would show that officer Brown at Ardmore knew defendant and had known him for some months, and that he shadowed him with a view of arresting him; that he discovered he had a suit of clothes with him, and saw him go in the pawn shop with the clothes and come out without them, and immediately went in and got the suit of clothes. We are of opinion there is no error shown in this matter.
Objection was urged to the following remark of the prosecuting officer: "Bert (meaning defendant) signed this pawn ticket — this false name to this pawn ticket." This bill is qualified by the judge as follows: "Said above mentioned argument was a legitimate conclusion drawn from the evidence: the evidence circumstantially showed that defendant signed said ticket and that defendant presented no written instruction to the court charging the jury that same should not be considered by them." We are of opinion that the remark of the assistant county attorney was a legitimate deduction from the testimony.
Another bill recites this language was used by the assistant county attorney: "Bert (meaning defendant) should put some witness on the stand to tell you what happened up there." The court qualifies this with the statement that "no such language was used," and as thus qualified was accepted by defendant and filed as a part of the record. We are of opinion that these bills do not present such error as would require a reversal of the judgment, and we are further of opinion that the evidence, though circumstantial, sufficiently shows that appellant was the party who entered Dr. Withers' office and took the suit of clothes, and that he pawned them in Ardmore on the following morning.
The judgment will be affirmed.
Affirmed. *Page 10
ON REHEARING. March 16, 1921.