Robinson v. State , 34 Tex. Crim. 71 ( 1895 )

This conviction was for an attempt to commit the crime of burglary with intent to steal. Appellant proposed to one Cox, who informed McDowell, the owner of the premises to be burglarized and the money therein situated, of the intended burglary. McDowell replied to Cox by saying, "Just let him [defendant] come along and we will try and catch him, and not insist on his coming, and not encourage him to come; if he comes, let it be of his own free will and accord, and voluntarily." I just said, "Let him come ahead; not to stop him."

There is no conflict in the testimony of McDowell and Cox upon this issue.

Appellant was not induced by McDowell or Cox to commit the crime, but was the instigator and prime mover in the whole affair.

Under this state of case, appellant did not have the consent of the owner to enter his house or to take his money therefrom.

This is a different case from that of Speiden v. The State, 3 Texas Criminal Appeals, 156, and authorities cited. In Speiden's case, the defendant entered a bank at the solicitation of a detective rightfully in possession, and with the consent of the owner. There are no such facts in this case.

In Pigg's case, 43 Tex. 108, it was held, that "it is not consent to the taking for the owner to obtain the aid of a detective, who, for the purpose of detection, joins the defendant in a criminal act designed by the defendant, and carried into execution by actual theft." See also Johnson v. The State, 3 Texas Crim. App., 590; Allison v. The State, 14 Texas Crim. App., 123; Conner v. The State, 24 Texas Crim. App., 245.

The charge complained of is correct. It sets forth very clearly the rule contained in the cited cases. It follows, therefore, the court did not err in refusing special instructions requested by appellant, because they were not applicable to the facts of this case. Cox did not, either of his own motion or at the suggestion of McDowell, the owner, propose the burglary to the appellant, but simply agreed with him to commit the burglary, not intending or contemplating, at the time, its accomplishment.

The evidence is amply sufficient to support the verdict; the case was carried beyond mere preparation to enter the house, and shows an actual attempt to make an entry.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.