Falco v. State (35 S.W.2d 415, 1931)

LATTIMORE, J.

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. Cr. R. 312, 39 S. W. 680. Variance as to-middle initials is immaterial. Spencer v. State, 34 Tex. Cr. R. 65, 29 S. W. 159.

A defense witness, testifying to .tlie good reputation for peace and quietude of tlie accused, may be asked on cross-examination by tbe state if be bas not beard that sucb accused bad been indicted for assault to murder. We perceive no error in tbe complaint of this. Branch’s Annotated P. 0. § 184, cites cases supporting our view, Young v. State, 41 Tex. Cr. R. 445, 55 S. W. 331; St. Clair v. State, 49 Tex. Cr. R. 481, 92 S. W. 1095.

A witness swore that about 2 or 2:30 a. m. on tbe night of the alleged burglary, be saw appellant and bis codefendant near tbe railroad station in a ear, said station being shown to be not far from tbe bouse burglarized. Over objection the witness testified that appellant and bis companion asked him to burry 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 bis codefendant were seen in tbe act of removing a sack of something from said burglarized bouse and putting it into tbe car. We think it not erroneous to prove tbe presence of said parties near tbe station at tbe time first mentioned, also that what they said to induce tbe witness to leave tbe vicinity was admissible.

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

That in defining theft tbe court inserted in bis charge tbe clause “or from tbe possession of some person bolding tbe same for him,” there being in tbe record no proof that tbe property in tbe bouse in question was being held for tbe owner by any one elsé, would not seem an error, if any, capable of possible injury to the accused. Certainly not sucb error as would call for a reversal. See article 666, O. O. P.

Some of tbe witnesses against appellant were negroes. Appellant testified that on numerous occasions be bad gambled with these negroes, that they got hot or sore with each other, and cursed each other, but that beyond this be bad no dealings or transactions with them. In bis argument to tbe jury the state’s attorney said:

“This defendant, who admitted be bad gambled with these negroes and said be bad won their money and that they bad won bis and would cuss at them, is tbe kind of man who would perjure himself to beat this case.”

This was objected to apparently on tbe ground that there was no testimony that appellant bad ever won money from these ne-groes, or that they bad won bis, and that hence tbe 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 exceptions appears to us to have no merit.

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

Binding no error in tbe record, tbe judgment will be affirmed.

On’Motion for Rehearing.

HAWKINS, J.

Appellant renews bis contention that tbe evidence fails to show him to have been a principal in the burglary, and challenges tbe correctness of tbe statement in our original opinion that “a witness testified that about 2:30 or 3 o’clock on tbe night of tbe burglary be saw a car standing close to said seed bouse, in which car was appellant, and that bis codefendant was standing with one foot on tbe running board of tbe car and that be was removing a sack from tbe bouse and putting it in tbe car.” It will be borne in mind that tbe evidence established that tbe burglarized seed bouse and tbe railroad station were near together. Tbe witness Bartlett testified:

“I was traveling across the bridge into town that night and I saw Louis Ealco and Lee Matelski, and when I first got on tbe bridge I beard a nail squeak, and when that happened, be (Louis) raced tbe motor of the car, as be was sitting in tbe car, and -bad on ■ a white shirt,’and Lee Matelski bad one foot on tbe car and tbe other on tbe seed bouse and was pulling at a board, and I beard somebody say ‘there comes somebody’. I heard Louis say that. Yes sir, when I came up on tbe foot of tbe bridge, tbe car was parked by tbe seed bouse and Lee Matelski was standing one foot on tbe wall and one on tbe car, and be gave tbe board a second pull, and it come off, and. Louis said ‘there comes somebody’ and Lee got in tbe seed bouse and Louis drove off. About five minutes later, I saw them again. I went around to the depot where the mail sack is, and the car come on back, and I got around the edge of the platform to see who was in the car, and Louis was in the car, and later.on Lee brought a sack of seed, and put it in the car. The defendant here was in the car I saw.”

The evidence quoted unquestionably makes appellant guilty as a principal. The breaking and entry of the building, that is, the burglary, actually occurred while appellant was bodily present. The subsequent placing of the seed in the car by appellant’s coprincipal some five minutes later only evidenced the culmination of the intent with which the burglary was committed, that is, the theft of the seed.

The motion for rehearing is overruled.