I. It is charged in the indictment that the burglary was committed by means of force, threats and fraud, and that the defendant did “break and enter” the house. The time, whether day time or night time, is not alleged. It has been held by this court that such an indictment will support a conviction for either a day time or night time burglary, if the proof'shows that the force used in the perpetration of the burglary was applied to the building. (Martin v. The State, 21 Texas Ct. App., 1; Carr v. The State, 19 Texas Ct. App., 635.) In this case the evidence sufficiently establishes that the burglary was committed in the night time, and by means of force applied to the building.
II. Defendant’s first bill of exception relates to the admission of testimony which, even if the same was inadmissible, was immaterial, and could not have influenced the verdict of the jury in any manner.
III. It was unnecessary to prove that the house was entered without the consent of the owner or occupant thereof, or of any person authorized to give such consent. (Taylor v. The State, 23 Texas Ct. App., 639; Smith v. The State, 22 Texas Ct. App., 350, and cases therein cited.) It is therefore wholly immaterial that the State was permitted to prove the non-consent to the entry of the person who temporarily had charge of the house.
IV. As to the defendant’s third bill of exception, it does not present the question sought to be raised in a manner to enable this court to determine it. Even if the explanation of the de*200fendant as to when, where and how he was wounded was admissible in his behalf, we are not informed what the statements were, and can not, therefore, say that they were material to the defendant. It may be, for aught we know, that said statements were that he received the wound at the time and place of the burglary, and while engaged in its commission. If such were his statements, he certainly could not be heard to complain that they were not received in evidence. A bill of exception taken to the exclusion of testimony must disclose the relevancy and materiality of the proposed testimony. Inferences will not be indulged to supply the omission of such essentials. (Luttrell v. The State, 14 Texas Ct. App., 147; Sutton v. The State, 16 Texas Ct. App., 490; Counts v. The State, 19 Texas Ct. App., 450.)
Opinion delivered November 9, 1887.V. It is alleged in the indictment that the house burglarized was owned and occupied at the time by one Herman Schroeder. It was proved that said Schroeder occupied the house as a store house, and that the post office was also kept in said house. At the time of the burglary Schroeder was temporarily absent from his home and store house on a fishing excursion, and had left the house in charge of óne Peed during said absence. Peed seems to have been in charge of the house merely as a clerk or employe of Shroeder, and his possession or occupancy of it was only temporary and subordinate to that of Schroeder, and was, in legal contemplation, the possession and occupancy of Schroeder. (Code Crim. Proc., article 426; Clark v. The State, 23 Texas Ct. App., 612; Littleton v. The State, 20 Texas Ct. App., 168; Frazier v. The State, 18 Texas Ct. App., 434; Bailey v. The State, 18 Texas Ct. App., 426.) It was not error, therefore, to refuse the special charge requested by the defendant to the effect that if the evidence showed that the house entered was in charge of Peed and not of Shroeder at the time it was entered, they would acquit the defendant.
We have found no error in the conviction, and the judgment is affirmed.
Affirmed.