Appellant’s motion in arrest of judgment was properly overruled, the indictment being in every respect ¡ sufficient to charge burglary under the statute (Penal Code, art. 704),— a burglary at night with intent to commit the crime of theft. *451It is not duplicitous; and it is not invalid or defective because it fails to aver that it was not, or to negative, the fact that the entry was “ by the free consent of the occupant or of one authorized to give such consent.” (Penal Code, art. 706.) Non-consent of the owner or occupant is never required where the indictment alleges the burglarious entry was accomplished by force. (Buntain v. The State, 15 Texas Ct. App., 485.)
One or more bills of exception were taken to the admission of evidence on the trial over defendant’s objections. This evidence had reference to defendant’s connection with the stolen property or fruits of the crime, after the theft had been committed. Whilst the evidence is positive that defendant was the party who entered the house, his guilt with regard to the perpetration of the theft after the entry was wholly circumstantial; and in order to establish this fact the court permitted a suspicious declaration of defendant, made at some distance from the place of the burglary, but on the same night and before the crime was committed, to be given in evidence. Evidence was also permitted showing interviews between defendant and one Williams on the day after the crime was committed,— Williams being the guilty party in whose possession and upon whose person the stolen property was found the day after it was stolen. This evidence was perfectly legitimate. It was not objectionable because it was an attempt to establish a conspiracy after its consummotion, by the use of the acts and declarations of one co-conspirator against another. The evidence was not so much to show what Williams did, as what defendant himself was doing. Anything he did after the consummation of the crime and tending to establish his guilt was legitimate evidence against him, as much so as what he might have said and done before its consummation. Another rule would render admissible all the evidence objected to in the bill of exceptions. As stated before, the theft branch of the case depended entirely upon circumstantial testimony; “in such cases the mind seeks, and is permitted to seek, light and knowledge from every source, however dim, calculated to throw light upon the transaction.” (Green v. The State, 12 Texas Ct. App., 51; Simms v. The State, 10 Texas Ct. App., 132.)
Animadversions by the prosecuting attorney upon the fact that defendant had introduced no witnesses in his behalf may or may not have been uncalled for and improper. A defendant is never required } to introduce evidence to establish his innocence; it is the duty of the i prosecution to establish his guilt. This error, if an error at all, of the i prosecuting attorney was, however, fully corrected by the following *452language used by the learned judge in his charge to the jury, viz.: “The defendant is not bound to introduce evidence showing, or tending to show, his whereabouts at the time of the commission of the offense. The State must make out its own case, for the defendant is presumed to be innocent until his guilt is established by legal evidence, and, in case of a reasonable doubt as to his guilt, he is entitled to be acquitted.”
Some complaints-are urged to the charge of the court. Ho exceptions were saved to it, nor were any special instructions requested. In the absence of such exceptions and special instructions the supposed errors — not being essentially material — nor in the light of the evidence of a character calculated to seriously affect the rights of appellant — will not be held reversible error.
. We are of opinion the evidence adduced fully sustains the charge of burglary perpetrated with intent to commit theft, and the actual theft by defendant of the goods and property charged, after his burglarious entry. On the record the judgment should be and is affirmed.
Affirmed.
[Opinion delivered January 28, 1885.]