Smith v. State , 34 Tex. Crim. 124 ( 1895 )

Appellant was convicted of burglary of a railroad car with intent to commit theft of goods therein situated, and his punishment assessed at two years' confinement in the penitentiary. The indictment alleges, that the goods in the car were the property of and taken from the possession of J.T. Wilson, and that the car was, when entered, in his control, etc. Appellant requested an instruction defining and explaining the distinction between general and special ownership of property. This charge was refused. That J.T. Wilson had exclusive control, management, and possession of the car and property therein was not questioned on the trial of this case; that he had, was by the evidence placed beyond doubt; and this being the case, it made no difference whether he was the general or special owner.

Counsel for appellant requested the court to define "night-time," and to instruct the jury, that if they had a reasonable doubt as to the time the offense was committed, to acquit, etc. That the burglary was committed at night is rendered certain, and hence there was no necessity to define "night-time." Again, there are two counts, one charging that the car was entered at night, the other in the day-time; and in both a breaking is charged. Now, the proof showing a breaking force applied to the car, it is immaterial at what time the car was entered, whether night or day.

Special instructions in reply to an inquiry of the jury regarding the confessions of appellant were refused. The court gave in substance that which was requested. Whether appellant was or was not in arrest, his confessions were admissible, because fruits of the crime were found in pursuance of his confessions.

The evidence amply supports the verdict, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.