Coates v. State

• Decision Date: 16 November 1892
• Citation: 20 S.W. 585
• Parties: COATES v. STATE.
• Court: Texas Court of Criminal Appeals

20 S.W. 585

COATES v. STATE.

Court of Criminal Appeals of Texas.

November 16, 1892.

Appeal from district court, Coleman county; W. J. WINGATE, Judge.

C. C. Coates was convicted of burglary, and appeals. Affirmed.

Sims & Snodgrass, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.

DAVIDSON, J.

This appeal is prosecuted from a conviction of burglary. In separate counts the indictment charges burglary at night and in daytime. The court's charge limited the consideration of the jury to the count alleging the burglary at night. The evidence adduced shows the offense to have been committed at night, and excludes the idea that the house was entered in the daytime. It was not error for the court to so limit the jury. This was the case as made by the facts. The court might have appropriately required a dismissal of the second count, or have pointedly instructed the jury to disregard said count, or charge them to acquit appellant of the charge therein contained. Parks v. State, 29 Tex. App. 597, 16 S. W. Rep. 532. Appellant attacks the indictment for the first time in this court, and urges its insufficiency to charge the offense of burglary. A similar indictment was sustained in William's Case, 24 Tex. App. 69, 5 S. W. Rep. 838, and we think correctly.

Appellant sought a postponement of his cause for the testimony of Hughes and Rathmell, by whom he expected to prove that, about the time of the burglary, "he was possessed of large means, and in good financial condition, and that also about said time he had received from said witnesses different and large sums of money." Concede the truth of these facts, yet they did not and do not antagonize a single criminative fact in the case, nor did they tend to mitigate the offense or to excuse or justify the act. In order to be material, the absent testimony must tend to disprove, render improbable, or cast some suspicion upon, the evidence relied on for a conviction. The evidence expected to be shown by the absent witnesses was not material, under the facts of this case. Defendant entered the house to steal beer, not money.

The indictment alleged ownership in J. P. Lynn. The evidence disclosed the ownership, as well as the actual care, control, and management, to be in said Lynn and one Erwin. They were partners. The court, in appropriate terms, charged the jury that the ownership was properly averred, and proof of such averment would be sufficient to sustain the indictment in this respect. This was...