Howington v. State , 94 Tex. Crim. 549 ( 1923 )

Appellant was convicted in the District Court of Eastland County of burglary, and his punishment fixed at two years in the penitentiary.

Without dispute in the record it is made to appear that a drugstore belonging to a Mr. Livingston was broken and entered at night about the 23rd of May, 1922, and from a tray of jewelry containing watches, rings la valliers, wrist watches, etc., about thirteen watches and twenty-three rings were taken. The glass of a window of the drugstore was broken in the entry. Blood was discovered in the immediate vicinity of the broken window and traced across the street and up a fire escape into a hotel, down the hall and into a room in which appellant was when the searching party arrived. Appellant seemed to be asleep when they entered. In the examination of appellant a fresh cut was found on one of his fingers and according to the testimony of one of the witnesses it seemed to be still bleeding. The proprietor of said hotel was a woman by the name of Billie Jenkins. The searching party aroused the proprietor and made some search of the premises. In a junk room not far from the room occupied by appellant a laundry bag was discovered and in it was found the missing articles of jewelry. Appellant took the stand in his own behalf and testified that on the night in question he left his room in said hotel and went down the fire escape, thinking he would go into the restaurant under the hotel and get something to eat. This was about four o'clock A.M. The restaurant was closed. Appellant said when he got to the foot of the fire escape and stopped a short distance from it, two men passed by and one of them cut him on the hand and that he "beat it" back up the fire escape to his room. He also said that he presently heard the officers talking and went back down the fire escape and found the officers and Miss Billie Jenkins in conversation. In our opinion the evidence was sufficient to justify the jury's conclusion of guilt.

Appellant's first bill of exceptions is leveled at testimony of Mr. Livingston to the effect that the thing that made him go to the Southern hotel in the first instance was his suspicion. An examination of said bill reveals the fact that witness made the statement apparently complained of and was asked some other question and was partially engaged in answering the latter when appellant's attorney objected to the testimony of the witness as to his suspicions. There is nothing in the bill from which we may apprehend injury to the appellant even if the objection had been promptly and properly made, which, however, we do not believe to be the fact. The house did not belong to appellant, nor did Mr. Livingston know he would be found therein.

Appellant asked a State witness the following question: "We there anything, from the time he was in the restaurant there, to prevent him from leaving the country, if he had wanted to?" The bill recites that the question was objected to by State's counsel and the objection sustained. It is stated that appellant contended it was competent and permissible to prove that defendant was not under arrest and could have left the country if he had desired, in order to show that he was not conscious of any guilt. There is nothing in the bill that affords us any light upon the question as to whether appellant was under arrest at the time or not. There is nothing stated whatever in said bill reflecting the situation or surroundings of the witness or the appellant from which we could conclude that the testimony was of any materiality. In the preparation of a bill of exceptions, we have often said that care should be taken to state enough of the facts and circumstances surrounding and affected by the proposed or rejected testimony, to enable us to understand and decide the question of injury. Turner v. State, 93 Texas Crim Rep., 104, 246 S.W. Rep. 187.

Appellant also complains because he was not allowed to ask Mr. Livingston while on the witness stand if he had not first accused one Billie Jenkins of the burglary for which appellant was now being prosecuted, and if it was not a fact that Billie Jenkins was in the house and restaurant about the time of the burglary. The objection of the State was properly sustained. There are many facts in this record upon which might be based the theory that appellant and Billie Jenkins were operating together in the transaction in question, and it would be immaterial as to which of said parties was first suspected by Mr. Livingston of being the burglar.

A special charge setting out at length testimony given by the appellant and concluding with an instruction to the jury that if they should find from the evidence the matters contained in said special charge to be true, they would acquit the defendant, is a charge upon the weight of the evidence and was properly refused.

In his charge to the jury the court gave the statutory definition of burglary, that is, that burglary was constituted by entering a house, etc., with the intent of committing a felony or the crime of theft. Appellant complained of the reference in the charge to the proposition of an entry with intent to commit a felony, averring that it was only pleaded that his entry was for the purpose of committing theft. We are inclined to think counsel for appellant some what critical. The charge of the court applying the law to the facts restricted the jury to the consideration of an entry for the purpose of committing theft. The facts abundantly showed that whoever entered the house did so with the intent to commit and did commit felony theft.

No error appearing in the record, an affirmance will be ordered.

Affirmed.

ON REHEARING. June 13, 1923.