In his motion for rehearing appellant urges that error appears in that we declined to sustain his complaint in bill of exceptions 10. It appears that Mr. Fowler, an employee at the burglarized store, observed after said burglary that a window above an awning had been broken out. We quote from Mr. Fowler's testimony:
"On Monday morning the 1st of April this year, I noticed the window that was out after I got to the store that morning. So far as I know I am the one that noticed that first. That window was broken out and the glass was laying on the outside. That glass window was laying over on the awning over in front of the building; it was glass 17 by 20 inches."
On cross-examination he said again that the glass was down on the awning, that it was broken, shattered. We quote further: "As to whether that glass was knocked out from the outside or from the inside, I don't know. * * * I know what the effect is on glass to knock it out from one side or the other." If we understand said bill of exceptions, its complaint is that appellant was not allowed to prove by the witness that *Page 210 he knew that glass in a window like the one testified about, if hit from the inside, would knock the glass outward, or to the outside. This testimony was objected to by the State as calling for an opinion, and the objection was sustained.
We confess our inability to see the possible materiality of this testimony. Mr. Fowler had sworn as follows: "That window was broken out and the glass was laying on the outside. That glass window was laying over on the awning over in front of the building." If in fact the window was out of its frame and lying on the awning, the question as to whether its shattered glass, which was lying there, was broken by force applied on the oneside or the other, would not settle or affect the guilt or innocence of this appellant. We do not think it would take any expert knowledge to know that if a window was struck from the outside, the glass would fall, if at all, on the inside, and vice versa. Of course if the window had been broken from its frame or casing, and laid on the owning, and thereafter in the passage or repassage through the opening the glass be broken, such question as that under discussion would be of no materiality whatever. There is no question but that the window was out, and an opening thus made would be by force applied to the building, and an entry through same would be burglary. We are not able to make application here of what we said in Gray v. State, 33 S.W.2d 457.
Appellant complains because we did not uphold his contention in bill of exceptions 12, wherein he urges that error was committed in not letting him prove by his mother that he told her "About buying the clothes and goods in question." The testimony given by appellant's mother is interesting. She said that he came to her and got $25.00 in April; that he was supposed to buy clothes with it. She was recalled to the witness stand and testified: "If Billie Brewer and Howard Brewer bought any new suits, I don't know anything about it," but she did testify that she saw Billie bring in some bundles. Clearly the proffered statement of appellant to his mother was self-serving and objectionable, as was that of appellant to witness Strickland.
We fail to find any testimony in this record which would not be material to the charge of burglary vel non, and think appellant's request to have the jury instructed not to consider any testimony which did not relate to the burglary, properly refused. *Page 211
Not being able to agree with any of appellant's contentions, the motion for rehearing will be overruled.
Overruled.