Falco v. State , 117 Tex. Crim. 70 ( 1931 )

Conviction for burglary; punishment, two years in the penitentiary.

The indictment charged burglary of the house of A. M. Peacock. The proof made was of burglary of the house of Abner Peacock. We think there was no variance between the allegation and proof. Franklin v. State, 37 Tex.Crim. Rep.,39 S.W. 680. Variance as to middle initials is immaterial. Spencer v. State, 34 Tex.Crim. Rep., 29 S.W. 159.

A defense witness testifying to the good reputation for peace and quietude of the accused, may be asked on cross-examination by the State if he has not heard that such accused had been indicted for assault to murder. We perceive no error in the complaint of this. Branch's Annotated P. C., Sec. 184, cites cases supporting our view. Young v. State, 41 Tex. Crim. 445,55 S.W. 331; St. Clair v. State, 49 Tex. Crim. 481,92 S.W. 1095.

A witness swore that about 2 or 2:30 A. M. on the night of the alleged burglary, he saw appellant and his co-defendant near the railroad station in a car, said station being shown to be not far from the house burglarized. Over objection the witness testified that appellant and his companion asked him to hurry and leave as they were expecting some girls to come to their car. Other testimony showed that at about 2:30 or 3 A. M. on said night appellant and his co-defendant were seen in the act of removing a sack of something from said burglarized house and putting it into the car. We think it not erroneous to prove the presence of said parties near the station at the time first mentioned, also that what they said to induce the witness to leave the vicinity was admissible.

We think the special charge, the refusal of which is complained of in bill of exception No. 3, was fully covered by the main charge in so far as same was applicable.

That in defining theft the court inserted in his charge the clause "or from the possession of some person holding the same for him," there being in the record no proof that the property in the house in question was being held for the owner by anyone else, — would not seem an error, if any, capable of possible injury to the accused. Certainly not such error as would call for a reversal. See article 666, C. C. P.

Some of the witnesses against appellant were negroes. Appellant testified that on numerous occasions he had gambled with these negroes, — that they got hot or sore with each other, and cursed each other, but that beyond this he had no dealings or transactions with them. In his argument to the jury the State's attorney said:

"This defendant, who admitted he had gambled with these negroes and said he had won their money and that they had won his and would cuss at them, is the kind of man who would perjure himself to beat this case."

This was objected to apparently on the ground that there was no testimony that appellant had ever won money from these negroes, or that they had won his, and that hence the expression of said attorney's opinion that appellant won money from them and they won money from him was without testimony to support it. It certainly would not be a far-fetched inference from testimony that certain parties gambled with each other often, to conclude that some would win from others and others would win from some. The complaint in this bill of exception appears to us to have no merit.

The facts in the case seem amply sufficient to support the conclusion of guilt. A seed house located near the railroad station above referred to was burglarized apparently by the removal of a plank which was nailed to the side of the house. A witness testified that about 2:30 or 3 o'clock on the night of the burglary he saw a car standing close to said seed house, in which car was appellant, and that his co-defendant was standing with one foot on the running board of the car and that he was removing a sack from the house and putting it in the car. This witness said his attention was called at the time by hearing the "squeak" of a nail. Search of the car of appellant the following morning revealed the presence in it of cotton seed. The contents of the seed house referred to were shown to be cotton-seed in sacks.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.