From a conviction of burglary with the lowest penalty assessed appellant prosecutes an appeal.
There are but few questions raised. One of these is appellant claims the evidence is insufficient to sustain the conviction. We have carefully read and studied the evidence. It is circumstantial. We are not only thoroughly convinced from a study of it that it is sufficient to sustain the conviction, but from it no other reasonable conclusion could be reached than of the appellant's guilt. We think it is unnecessary to recite the evidence. It is quite lengthy. The statement of facts is more than 100 typewritten pages.
The State invoked the enforcement of the rule. The witnesses were thereupon duly sworn and properly instructed by the court. One of the material witnesses for the State was Fred Senter, the sheriff of Stonewall County, in which county the burglary is alleged to have been committed and from which county to Jones County the venue had been changed. The State requested that said witness be permitted to remain in court. The defendant objected to this. The witness remained in *Page 411 the courtroom and heard the testimony of the other witnesses who testified before he did. The court, in qualifying the bill, stated, in effect, that the rule always obtained in the courts and it was the custom to permit the sheriff to remain in the courtroom, not to be required to go out under the rule, and he followed this custom, stating further, "The court, knowing the high character of the witness, was of the opinion that no injury would be done appellant thereby and that none was done." This court, in a uniform line of decisions, has always held that such matters are committed to the sound discretion of the trial court and that such discretion will be presumed to have been correctly exercised until the contrary is shown. The court did not abuse his discretion in this case. White's Ann. C.C.P., sec. 767, and cases collated thereunder.
About the night of December 13, 1912, the depot building of the Wichita Valley Railroad at Aspermont, in Stonewall County, was burglarized and certain express articles therefrom stolen. The next day after the discovery of the burglary said Sheriff Senter with Mr. Bingham suspected appellant and Don Brewster, who was with him, of the burglary. They found where a buggy and double team had been hitched at a rather secluded place some 100 or more yards from the depot. They tracked two persons from the buggy towards the depot and back to the buggy. One of the horses made a peculiar track which was readily identified. They also found the tracks of these same two parties and said horse and the buggy tracks at a place where a fire had been the night before about a mile and a half from the town of Aspermont, where appellant and said Brewster and this team of horses were seen at this fire early the night of December 13th. They also found these same tracks all — vehicle, horses and persons — at an old rock house about four miles from Aspermont. Both these places where the appellant and Brewster were seen at this fire and the old house were near the road. They suspected appellant and Brewster and watched them the next day. After appellant and Brewster left town, the sheriff and Bingham followed them. They left Aspermont after appellant and Brewster had already gone about one mile. The sheriff and Bingham were on horseback; they rode rapidly until they got in sight of appellant and Brewster. Appellant and Brewster drove rapidly until they got near said old rock house. As they did so, they drove slowly, — in a walk, looking back and evidently discovered the sheriff and Bingham following them. After passing the old house they drove rapidly for some short distance. They were overtaken by the sheriff and Bingham and their buggy searched but the stolen goods were not found therein. They were then discharged and the sheriff and Bingham went back to this old rock house and searched it, finding therein three of the stolen articles. They also discovered the tracks of two persons to and from this old house and the tracks of the buggy and team where they had been hitched in the lane near thereto. Appellant and Brewster, after being turned loose at first by the sheriff, got on an elevation where they could see what the sheriff and Bingham did, and stopped and watched them. As soon as the sheriff *Page 412 and Bingham found the goods in this old house they went to and arrested appellant and Brewster and brought them back and stopped them opposite this old house. The sheriff then went back to the house and further searched for tracks. Upon discovering them he called to Bingham, who was with appellant and Brewster, and told him to bring the two men to the house, which was done. The sheriff thereupon had both of them to make tracks so that they could be measured. The sheriff then measured their tracks then made, accurately with the tracks he had already found, going to and from this house and they corresponded exactly. He also measured the horse's track at this house where it had been evidently the night before and at the said fire and where the team had been hitched near the depot and they corresponded exactly. He also measured the hoof of the horse itself and it corresponded exactly with these tracks and was the horse that made them.
Appellant has several bills of exception to the testimony of Bingham and the sheriff, Senter, as to these tracks, both of the horse and men, and objected for various reasons, among others, claiming that by the sheriff forcing appellant and Brewster to make their tracks at the old house, while under arrest, it was inadmissible as it was thereby forcing them to give testimony against themselves while under arrest. All this testimony was clearly admissible and has many times been so held in a uniform line of decisions by this court. Pitts v. State, 60 Tex. Crim. 524; Walker v. State, 7 Texas Crim. App., 245; Meyers v. State, 14 Texas Crim. App., 35; Bruce v. State, 31 Tex. Crim. 590, and sec. 1074d, White's Ann. C.C.P.
The court gave a correct and full charge submitting everything aptly that was proper and necessary to be submitted to the jury. Appellant makes no complaint of the court's charge in any respect. He requested, and the court refused to give his special charge to this effect: "That character footprints, measurement of tracks and tracks are not of themselves sufficient to support a conviction for burglary; therefore, you are charged that the evidence of tracking, measuring and comparing the tracks introduced by the witnesses Senter and Bingham and Whitaker, would not of themselves warrant a conviction for the offense charged in the indictment against the defendant." There was much other evidence tending to connect appellant with the burglary in addition to the tracks of himself and Brewster, the horse and the vehicle. It would have been improper for the court, therefore, to have singled out a part of his testimony and given appellant's special charge on the subject. This can no more be done against the State than against appellant. As stated above, the court correctly, aptly and fully submitted a charge to the jury. See White's Ann. C.C.P., sec. 810, and cases there cited.
No other questions are raised to be passed upon. The judgment will be affirmed.
Affirmed. *Page 413
ON REHEARING. April 8, 1914.