Abernathy v. State

• Decision Date: 13 June 1934
• Docket Number: No. 16847.,16847.
• Citation: 74 S.W.2d 986
• Parties: ABERNATHY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 986

74 S.W.2d 986

ABERNATHY v. STATE.

No. 16847.

Court of Criminal Appeals of Texas.

June 13, 1934.

Rehearing Denied October 17, 1934.

Commissioners' Decision.

Appeal from District Court, Wheeler County; W. R. Ewing, Judge.

R. C. Abernathy was convicted of burglary, and he appeals.

Affirmed.

Reynolds & Heare, of Shamrock, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The appellant was tried and convicted of the offense of burglary, and his punishment assessed at confinement in the state penitentiary for a term of two years.

The indictment is in two counts; one charging burglary and the other charging theft. The facts, briefly stated, are as follows: On the morning of July 29, 1933, Mr. W. M. Lisle discovered that his granary situated about one mile west of Shamrock on highway 66 had been entered and a load of wheat taken from same. Mr. Lisle had been at the granary at 11 o'clock on the night of July 28, at which time no entry had been made into the granary and no grain had been taken therefrom. The next morning he discovered that his granary had been entered during the night and a load of wheat taken from same. He also observed where a truck with dual tires on the rear wheels had been driven up to the granary, and also observed tracks made by a truck leading from the granary to the highway, but the tracks of the truck in most places were obliterated by some limbs or branches, of a tree which were dragged by the truck. However, the tracks were plainly visible in some places, and there the tracks showed to have been made by a truck with dual wheels on the rear of the truck and made by tires of similar size and kind as those of appellant's truck. Mr. Lisle also found some large green leaves and a part of a limb of a tree along the trail made by the truck. The appellant at the time was living in a garage apartment situated in the town of Shamrock belonging to Dr. Beech, and he, the appellant, kept his truck under a tree near the garage. Mr. Lisle and Mr. Lummus went to Shamrock and noticed the appellant's truck parked under a tree at Dr. Beech's garage, which the appellant occupied at that time. They observed some grains of wheat in the cracks of the floor of said truck and where part of a limb had been broken from a tree. They fitted part of the limb of a tree found along the trail made by the truck to that part of the broken limb on the tree, and it seemed to fit perfectly and made a perfect union. They also found that leaves of a tree which they found along the trail made by the truck were similar in size and character as those on the tree at the Beech garage where appellant parked his truck. They then went to see the appellant and asked him how long he had owned the truck and whether he had ever hauled any wheat in it, to which the appellant replied that he had owned the truck about a year, but had never hauled any wheat in it. They then took him to the truck and showed him the wheat in the cracks of the floor of the truck and the leaves found, whereupon the appellant admitted that it looked like his truck had been used in hauling the wheat, but that he did not do it; that it looked like they had him in a jam and if he had the money he would pay for the wheat, but he did not have any money. The state further proved that on Saturday morning, July 29, 1933, the appellant sold 138½ bushels of wheat to Mr. Husted at Pampa for the sum of $116.32, which he claimed he had acquired at Erick, Okl. The appellant did not testify. However, his wife and brother-in-law testified for the appellant that he, the appellant, was engaged in trucking into Oklahoma and Colorado and early in the evening of July 28th the appellant had his truck loaded with wheat and parked under the tree near the garage of Dr. Beech which he carried to Pampa the next morning. He also introduced a witness who testified that he was engaged in the garage business and carried automobile accessories; that in the early part of the night of July 28th, the appellant called upon him to repair a flat on his truck. The witness testified that he went to the place where the appellant's truck was parked and repaired the flat tire, and in doing so he noticed that the truck was loaded as he could not jack it up with an ordinary jack, but had to employ an extra jack for that purpose.

The appellant first complains of the action of the trial court in refusing to sustain his motion to require the state to elect upon which count of the indictment it would ask for a conviction. It is a well-settled rule in this state that if different counts charging the same character of offense are inserted in the indictment to prevent a variance, and there is evidence supporting each, the state is not required to elect between such counts, and in support of the views herein expressed we refer to the case of Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949; Owens v. State, 35 Tex. Cr. R. 345, 33 S. W. 875; Dill v. State, 35 Tex. Cr. R. 240, 33 S. W. 126, 60 Am. St. Rep. 37. However, in this case it appears that the court made an election and submitted the case to the jury on the first count only.

By bill of exception No. 2 the appellant complains of the action of the trial court in permitting the district attorney to prove by Mr. Husted the following: "I had not known the man prior to that time and so far as I know that is the first...