Scott v. State , 168 Tex. Crim. 94 ( 1959 )

WOODLEY, Judge.

The offense is burglary; the punishment, enhanced by a previous conviction for burglary, twelve years.

About 11:30 P.M. three men drove up to Mr. Kincaid’s grocery store in a Cadillac automobile and went to the front door. One of the men returned to the car and took therefrom a tire tool with which they forced the door open.

Two of the men entered the store, and the other drove the Cadillac away. He soon returned and the three men placed Mr. Kincaid’s safe, which they removed from the store, in the trunk of the automobile and drove away.

Mrs. Nickerson witnessed the foregoing from the porch of her home across the street and reported it to the police.

The Cadillac described by the lady was stopped by the police slightly less than four hours later and the three occupants were arrested.

Mrs. Nickerson identified the automobile as that which was driven to the store and into which the stolen safe was loaded. She identified two of the occupants of the automobile as the small and the tall of the three burglars, but could not positively identify appellant as the third or middle-size one. She did, however, testify to his description, his size, walk and mannerisms as being similar to those of appellant.

It was shown by other testimony that appellant owned the Cadillac; that the mark found on the door which was forced was, in the opinion of the officer who compared it, made with the tire tool found in the Cadillac.

It was also shown that the two other occupants of the Cadillac pleaded guilty to the burglary of the store, and it was established that appellant had been previously convicted of burglary pleaded for enhancement of punishment.

Appellant did not testify, but offered testimony to the effect that he loaned his Cadillac to the two who were arrested with him and that he remained at a night club until they returned shortly before the arrest.

The jury rejected the defense of alibi raised by this testimony.

The sole question raised on this appeal is the sufficiency of the evidence to sustain the conviction.

The court submitted the case as one of circumstantial evidence, and we are to decide whether, viewed in the light most favorable to the state, the evidence is sufficient to exclude every other reasonable hypothesis than that appellant was the third party to the burglary of the store.

If there be any such hypothesis, it must be that appellant’s two companions borrowed his car, then associated themselves with another person of the same general description and the same mannerisms as appellant; committed the burglary, prizing the door with the tire tool found in the car; took the safe to a point some thirty miles away and rifled and wrecked it; then returned to the night club, their new associate, a man of appellant’s description, disappearing at some time after the burglary and before the two confessed burglars and appellant were arrested together in the car less than four hours after the burglary.

This was the very, theory rejected by the jury. It was not a reasonable hypothesis and we see none raised by the evidence other than that of appellant’s guilt.

The judgment is affirmed.