Mr. Richardson was local agent of a railway company, and the car alleged to have been burglarized was in the station of said company awaiting unloading. Same was in the care, control and management of Richardson. The contention is now made that McMahon, warehouseman under Richardson, had the care and control of the car in question, and that the testimony does not support the allegation in the indictment of ownership of the car and its contents in Richardson. We find ourselves unable to agree to this proposition. The testimony was that the car in question had not been "spotted" for unloading. Except when in the discharge of his duty to unload, when that time came, McMahon had no control of the cars in the station. This seems to dispose of this contention made in the motion.
On the general proposition that the evidence did not make out a case, as said by us in our former opinion, the confession of appellant was in evidence admitting his guilt, and this with other testimony amply supported the State's theory. Appellant claimed that when he made the confession he was not rational. The court below gave a special charge prepared by appellant's counsel telling the jury that unless they found from the evidence that appellant was normal and rational when he made the confession referred to, they should not consider same for any purpose. The jury apparently decided this issue against appellant.
In this case we are of opinion that that part of the charge of the court instructing the jury that by the term "entry" into a railroad *Page 252 car is meant any kind of entry but one made by the free consent of the owner, etc., was clearly erroneous, — but the facts in this case showing that such entry was by force and a breaking, — the error referred to must be held harmless. Crane v. State, 240 S.W. Rep. 920. Both in the confession of appellant and the testimony for the State it was shown that the seals on the door of the car in question were broken by appellant and his companion on the occasion of the alleged burglary. We are forbidden by the statute to reverse any case for an error in the charge not calculated under the facts in that case to injure the rights of the accused. Art. 666 Cow. C. P.
We do not think the reference by the prosecuting attorney as evidenced by his argument to the jury, to the fact that appellant was a dangerous man, was wrong or unwarranted in view of the record and the admissions in the confession by appellant as to his criminal record in the past. Nor do we think the other argument, referring to what appellant's counsel may have thought or not thought as related to their having asked or not asked a special charge instructing a verdict of acquittal, would constitute any ground for reversal.
The motion for rehearing will be overruled.
Overruled.