Clark v. State , 79 Tex. Crim. 196 ( 1916 )

Appellant was convicted of burglary and his punishment assessed at two years in the penitentiary.

The evidence was amply sufficient to sustain the verdict. Appellant claimed and testified that he was in the house alleged to have been burglarized at the time and stole therefrom certain articles, but he claimed that the brother of the owner of the house admitted him therein, and that they by agreement went therein to gamble. The effect of his testimony and claim was that, at the time he entered the house, he had no intention to commit any theft or do anything other than gamble with the brother of the owner of the house. The State's case positively disputed the appellant's defense. The court, in a correct, full and apt charge, submitted all the questions raised to the jury for a proper finding.

Mr. Crittenden in appellant's behalf testified that on the night of the burglary he passed said house, returning from church with his wife, and saw two persons come out of the back of said house, and he was permitted, properly, to describe these persons fully and how they were dressed. The effect of his description was to describe appellant as one of these parties, and the other as Ben Harris, the brother of the owner of said house. In his direct examination, he stated positively that, at the time he saw these persons, he did not then form any opinion as to who they were. The appellant sought to prove by him that, since then, he had come to the conclusion of who they were, and that he would now testify that they were appellant and said Ben Harris. The State objected to this, and the court went into the matter thoroughly, both before the jury and with the jury retired. He attaches as a part of his qualification the whole testimony of the witness in question and answer form. From it, it is clear that the judge was authorized to conclude, as he did, that it was by a process of reasoning from what he afterwards heard, and not what he then knew at the time he saw them, from which he formed his opinion that it was said two persons. And the court, in his qualification, says he excluded the answer of the witness, because he did not recognize the parties at the time, and reached the conclusion later that it was them from a process of reasoning or believing based on information subsequently received by him. We think the authorities cited by appellant are inapplicable. This is the only question for decision. The court ruled correctly.

The judgment is affirmed.

Affirmed.

[Rehearing denied March 8, 1916. — Reporter.]