Hocks v. State , 97 Tex. Crim. 480 ( 1923 )

Appellant earnestly insists that the facts proved do not overcome the presumption of innocence.

The State's witness, T.C. White, was watching his store at night time and saw a person whom he recognized as the appellant approaching on his premises. The witness said:

"Of course, I couldn't tell exactly what the defendant was doing when I got in sight of him around there, but he seemed to be pressing or shoving against the door some way; he was pushing at the back door of my store, he had his shoulder against it. He did not stay there and continue his efforts at that door but just a short time, not but a few minutes . . . . then the defendant turns and comes back towards me slowly, like he was looking for something on the ground, and when he got up tolerably close to me, I hollered and told him to stop and then of course he broke and run. . . . I shot at him with a single-barrel shotgun loaded with No. 6 shot."

There was evidence that appellant's mule, harnessed to his buggy, was found hitched at a point near White's store. Upon his arrest, appellant was found to have a slight wound upon his body. The witness White further testified:

". . . and when I did get to where I could see him, I saw him working at my back door and he just stayed there a short time, just a minute or two; he was in this shape (indicating) pushing against the door, is the way it looked to me, and when he left the door he started back west and it seemed like he was looking down towards the ground."

Appellant testified and denied that he had hitched his mule where the State witness claimed it was found, and accounted for the wound upon him by the statement that he was scratched by a wire fence. He also denied his presence about the store on the night in question. In one paragraph of his charge, the court instructed the jury thus:

"By the term `breaking' is meant that the entry must be made with actual force. The slightest force, however, is sufficient to constitute breaking, such as raising the latch of a door and opening it; pushing at a door that is closed, with intent to open it and enter by force."

The illustration, "pushing at a door that is closed" seems to the writer of very doubtful propriety. Exception was reserved upon the ground that it was upon the weight of the evidence.

In Bill of Exceptions No. 1, complaint is made of the receipt in evidence of the witness White, as follows:

"Well, I was lying out there watching the store, guarding it until midnight; my son was there helping me guard it. My store had been broken into just shortly before this time, that is, on Saturday night before this Friday night."

It appears from Glenn's case, 76 S.W. Rep., 758, that the accused was convicted of burglary, and that the witness Justiss was permitted to testify "that his house had been broken into on several occasions before the night appellant is alleged to have broken into the house; that on several occasions which dated back several months, small sums of money were taken from the house; that the reason witness was watching the house defendant is alleged to have burglarized was because of the previous breaking." Holding this evidence inadmissible, this court used the following language:

"The circumstances under which evidence of other offense than the one for which the accused is being tried is admissible have been defined by a number of decisions of this court. . . . But in every case where such extraneous crimes are admissible there must be pertinent testimony tending to show that appellant was guilty of the extraneous offense. Williams v. State, 38 Tex. Crim. 128,41 S.W. 645. In this case, so far as the bill presents the matter, there is no evidence tending to show that appellant was guilty of having entered the house on previous occasions. Nor is it apparent that the previous entries were a part of the res gestae, serving to identify and connect defendant with the crime charged. Nor was there any testimony showing how such extraneous crimes would shed any light on the burglary here charged against appellant."

Our attention was not directed to the Glenn case, supra, on the original hearing. The receipt of the evidence of other offense, in the absence of any testimony connecting appellant with them, seems to have been error. This illegal testimony was of a nature calculated to injure the appellant, and taking note of the evidence in the record, we are not prepared to say that the error was not harmful.

The State's witness is somewhat indefinite in describing the acts of the accused, and without the testimony of previous acts, not properly attributable to the appellant, the conclusion of the jury touching the guilt of appellant might have been different.

The motion for rehearing should be granted, the affirmance set aside, and the judgment reversed and the cause remanded.

Reversed and remanded.