Howell v. State , 109 Tex. Crim. 42 ( 1927 )

A vigorous assault is made upon our holding it not error to refuse to charge on circumstantial evidence. The complaint was brought forward in bill of exceptions No. 4. Upon more careful examination and reflection we have concluded that we were in error in this particular.

The offense charged was burglary. We based our holding that this was not a case of circumstantial evidence upon the proposition that that the state did not rely alone upon the circumstance of recent possession of stolen property, but that the confessions of appellant were in evidence and, therefore, the case was not one wholly dependent upon circumstantial evidence. The state relied upon the finding in the possession of the appellant's wife some weeks after the alleged burglary, of a Navajo blanket and pillow which were identified by the owner of the alleged burglarized premises as being his property, and as having disappeared from the burglarized camp house at or about that time. This property was found in the home of appellant's mother-in-law, which was apparently occupied by appellant's wife, her mother, and a sister and brother of appellant's wife. It is not quite clear that appellant was staying at said place at the time the alleged stolen property was found there. Inasmuch as nothing shows that said blanket and pillow were found in any such possession of appellant as would appear personal or exclusive in him, the weight of its finding as a guilty circumstance against appellant is very questionable. Russell v. State,218 S.W. 1049.

The confessions referred to appear to be found in the testimony of appellant's mother-in-law, Mrs. Massey, and her daughter, Nadene Massey. Nadene's testimony is set out in the original opinion. She says she heard a conversation between her mother and appellant in which appellant said, "How do you like the blanket I got for Thelma?", to which the mother replied, "It is all right. Where did you get it?" and that appellant said, "I stole it out of a camp at Lake Worth." The testimony of Mrs. Massey as to what appellant said, apparently on the same occasion, is as follows: She says appellant said to her, "How do you like Thelma's blanket; did you see Thelma's blanket?", to which witness replied, "Yes." Appellant then said: "How do you like it?" and witness said, "It is all right," and appellant replied, "I got that for her." She avers that is all she heard. Giving to this alleged confession its strongest probative force, same falls short of any confession on the part of appellant of a burglary. Winn v. State,198 S.W. 965; Beason v. State, 63 S.W. 633; Beason v. State, 67 S.W. 96; Cabrera v. State, 118 S.W. 1064 (citation and discussion of authorities collated in dissenting opinion by Ramsey, J.); Davis v. State, 295 S.W. 608. Practically the exact point was decided in some of the cases cited.

The owner of the alleged burglarized premises testified that he had a camp house on Lake Worth and that he did not visit same for about three weeks during November, 1926. During the time of his absence the house was broken and entered and a large quantity of personal property taken. None of it was traced to appellant in any way save the blanket and pillow above mentioned. It is clear that after the screens were torn from the house and same was broken and entered at the time of the burglary, same was open to the entrance of any other person who may have desired to commit theft or any other depredation, such theft not being burglary. That appellant may have committed theft by entering the house after it was burglarized, and taking therefrom only the blanket and pillow in question, would be easily possible. This is said in order that it may be apparent that his confession of the theft would be tantamount to a confession of the burglary, in a case whose facts were as those before us. There might be cases where the burglary and theft were so closely related and in such juxtaposition that the confession of the one would be substantially an admission of the other, but it is plain, as is discussed in the cases above cited, that the confession of the theft is sometimes no more than a circumstance to be considered by the jury in determining the question of guilt of the burglary. We have no doubt of the fact that the court below was in error in assuming that the confession of theft of the blanket and pillow relieved this case of being one on circumstantial evidence. Appellant excepted to the failure of the court to so charge, and asked a special charge on that phase of the case. For what we now believe to be the error of the court in this regard, the motion for rehearing is granted, the affirmance set aside, and the judgment reversed and the cause remanded.

Reversed and remanded.