Appellant was convicted in the district court of Hays county of the offense of burglary, and his punishment fixed at two years in the penitentiary.
The store burglarized was located at Uhland, a little town some twelve miles from San Marcos, the county seat of Hays county. That a burglary was committed and a quantity of clothing, shoes, waists and dress goods material were taken, is not disputed. A clerk in said store testified that he saw a man in the store the afternoon before the night of the burglary just like appellant. It was in testimony that when the burglary was discovered in the morning after same was committed, there were tracks of two men going side by side out to a point where a car had stopped. This car was tracked to where it entered the highway going in the direction of San Marcos. The party doing the tracking said he found another track beside the two mentioned which looked as though it was walking along on the side of the road down which the car went. The imprint of this track was not quite as plain as the others. A woman named Garcia testified that appellant came to her house with a sack containing three Georgette waists, one pair of shoes, one suit of men's clothes and two pieces of goods. She said appellant stated that he wanted to leave the clothes in the house. This witness also stated that the day before appellant brought these articles to her house she saw him and her brother Sebastian Machado in an old Ford car. Officers testified that after the burglary they found in Machado's house a part of the goods that were taken out of the burglarized store and which were afterwards identified by the proprietor. These goods were found in Machado's house a few days after the burglary. The officers also found at the home of the Garcia woman several ladies waists and some dress goods and one suit of clothes. A written statement made by appellant after he was arrested and duly warned, which was signed by him in the presence of witnesses, was introduced in evidence by the State. In it was an admission that on the night in question he went in a Ford car with Machado and the husband of the Garcia woman up to a point at the foot of a hill not far from Uhland. He claimed that at this point he declined to go any farther and that Garcia and Machado got out of the car and left. He said that all three had started to Uhland to take part in a gambling game there. He further claimed that after the men left him he lay down in the car and went to sleep and that they came later, waked him and that they had a sack which they claimed to contain things they had won in the gambling mentioned. He said they gave him some of the articles and that he took them to San Marcos and gave them to a woman at the house of one Gonzoles. *Page 254
We perceive no error in admitting in evidence the written statement of appellant. The fact that there were exculpatory matters stated therein, and that the whole confession was put in evidence by the State, would not render it inadmissible. The court below gave a special charge telling the jury that the State would be bound by the exculpatory part of said confession, unless its falsity was shown by other evidence.
There is a bill complaining of the refusal of a peremptory charge which we think presents no error. Nor do we perceive any error shown in the exceptions taken to the court's charge.
The evidence showing that appellant was with the other parties on the night of the alleged burglary and that he turned up the next day with a part of the stolen property in his possession, would seem to justify the submission of the case to the jury on the law of principals. Several of the exceptions taken to the charge evidently resulted in changes therein. The court gave a special charge requested by the appellant, on circumstantial evidence.
Bill of exceptions No. 4 is leveled at the charge for failure to submit an affirmative presentation of defendant's theory of the case, and also to the court's refusal of a special charge referring to the written statement made by appellant, and in which the jury were told that though they might believe from said statement that appellant received and disposed of all or of part of the property taken from the burglarized premises, they could not convict him upon this testimony for receiving and concealing stolen property; that they must believe him guilty of burglary as defined. We think there was no likelihood of the jury convicting appellant of receiving and concealing stolen property, and unless this was true there was no need of giving the special charge.
Bill of exceptions No. 5 sets out the written statement of appellant offered in evidence by the State and complains of the refusal of a special charge to the effect that the mere presence of appellant at the time and place of the burglary would not make him a principal, nor would mere knowledge, and that he could not be convicted unless the jury believed beyond a reasonable doubt that he did some act in furtherance of the common design. In the written charge given by the court below the jury were told that in order to convict, they must not only believe appellant was present and knew the unlawful intent, but also that he aided by acts or encouraged by words, etc. We think this a sufficient presentation of the law on this point.
The sixth bill shows that appellant had his wife and children present at the trial, and that his counsel appealed to the jury not to take him away from them by their verdict. In replying to this it is set out that State's attorney told the jury that if appellant thought so much of his wife and children he ought not to have been *Page 255 running around with another woman and acting toward her as was demonstrated by the testimony. We do not think this objectionable argument. It was shown by the testimony that appellant came from San Antonio to San Marcos in a car with another man and two women; that appellant had a sister living in San Marcos, that he did not take the women to her house, but took them to the house of a man named Gonzales; also upon his return to San Marcos from the Uhland community on the night of the alleged burglary, he went to the house of Gonzales where said two women were and spent the night; also that he gave to one of the women part of the goods which apparently came out of the alleged burglarized store. We think such conduct justified the reply made by the State's attorney to the argument of appellant.
There is a bill of exceptions to the refusal of the motion for new trial, but as no issue of misconduct, or newly discovered evidence, or any other calling for the presentation of evidence other than that heard on the main trial, was made, — the bill of exceptions to the overruling of said motion presents nothing for our consideration.
Finding no error in the record, the judgment will be affirmed.