The appellant was convicted for the offense of burglary and sentenced to two years in the penitentiary.
The uncontradicted evidence shows that on or about January 30, 1926, appellant and the accomplice witness, Monroe Craft, broke into and entered the store occupied and controlled by W. T. Taylor, and took therefrom various and sundry articles of merchandise. The sheriff afterwards recovered most of said articles from the possession of the appellant, same having been pointed out to the sheriff by appellant on his premises.
There are in the record for our consideration but two bills of exception. Bill of exception No. 2 complains that the state, over appellant's objection, was permitted to prove by the prosecuting witness, W. T. Taylor, that he was acting in the capacity of administrator of the estate of his deceased sister, Mrs. R. M. Pace, and that in said capacity he had the possession of the house which is alleged to have been burglarized. Appellant objected to this testimony because the indictment did not allege that Taylor was holding possession as administrator, but that it alleged he was the owner of said building. We are unable to agree with appellant's contention. It has been frequently held that ownership may be alleged in the person having actual care, control, and management of the house alleged to have been burglarized, and it is not necessary to allege in whom the title is. The capacity in which the said Taylor controlled the house is immaterial, inasmuch as it was proved that he had the actual care, custody, and control thereof. This was all that was necessary.
Appellant's bill of exception No. 3 complains that the state, over his objection, was permitted to prove by the prosecuting witness, W. T. Taylor, that Taylor's sister, Mrs. Pace, had made a will and had willed the property to the different heirs and that the will had been probated before the burglary and that the title *Page 537 to the respective goods had passed to the respective heirs, but that Taylor was administrator of the estate. This testimony was objected to because, if there was a will, the will itself was the best evidence, and that secondary evidence of the contents of the will was not admissible unless the will had been destroyed or misplaced. We are unable to agree with this contention. It was only necessary that the indictment allege that the house was occupied and controlled by W. T. Taylor. The state alleged and proved this. The evidence complained of, while foreign to the question at issue, could not have injured the appellant in any manner. Vernon's P. C., Art. 1390, Note 11; Branch's P. C., page 1271, Sec. 2324.
There being in the record no objection to the court's charge, it is presumed the learned trial judge properly charged the law. The facts being amply sufficient to support the verdict, the judgment of the trial court is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.