Ash v. State
| Decision Date | 01 November 1967 |
| Docket Number | No. 40734,40734 |
| Citation | 420 S.W.2d 703 |
| Parties | Bobby Edward ASH, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
J. R. Blumrosen, Lubbock, for appellant.
Alton R. Griffin, Dist. Atty., J. Blair Cherry, Jr., Asst. Dist. Atty., Lubbock, and Leon B. Douglas, State's Atty., Austin, for the State.
The offense is burglary with two prior convictions alleged for enhancement; the punishment, life.
On the night in question the witness Arwine returned to his drugstore after closing hours. Upon hearing strange noises like someone trying to break in, he left an called the police from another location. Five or ten minutes later, several officers arrived on the scene. One of the officers went ot the rear of the store where he ascertained that the rear door was locked and secured. While doing so, he heard people talking in the store and heard coins dropping on the floor. Another officer stationed himself on the roof of the drugstore and he too heard voices 'like someone counting money' and the sounds of coins dropping. Arwine opened the front door and two officers entered the drugstore and saw that the knob had been knocked off the safe. Further investigation revealed a fresh hole in the drugstore wall common to the departent store adjoining it. The officers proceeded through the hole and in the abjoining store apprehended the appellant and a companion who were hiding in a dressing room. The officers testified that the doors of the drugstore were locked and secured, that the department store's rear door had been pried open, that no one left either the drugstore or the department store from the time the police arrived until the appellant was apprehended, that coins and burglary tools were found on the floor of the drugstore, and that appellant had a screw driver in his pocket.
Appellant urges as his first ground of error that the evidence is insufficient to support the conviction. Specifically, he points to the failure to show that he was in the drugstore at any time, that he was not lawfully in the department store when apprehended, and that he had taken any money from the drugstore.
The offense of burglary is complete without a taking of property where there is a breaking and entering with the intent to commit a felony or to commit the crime of theft. Duran v. State, 160 Tex.Cr.R. 167, 268 S.W.2d 167, and Rodgers v. State, 164 Tex.Cr.R. 375, 298 S.W.2d 827.
Taken as a whole, the evidence is sufficient to support the conviction under the rule relating to circumstantial evidence as set forth in Thomas v. State, 150 Tex.Cr.R. 540, 203 S.W.2d 536.
Appellant contends that the trial court erred in overruling his motion to quash the indictment because appellant was not granted an examining trial when such was requested in accordance with Article 16.01, Vernon's Ann.C.C.P. The record reflects that appellant was arrested on the night of May 1, 1966, and an indictment was returned on May 3, 1966. Article 16.01 provides:
'The accused in any felony case shall have the right to an examining trial before indictment in the county having jurisdiction of the offense, whether he be in custody or on bail, at which time the magistrate at the hearing shall determine the amount or sufficiency of bail, if a bailable case.'
Trussell v. State, Tex.Cr.App., 414 S.W.2d 466, is authority for overruling of appellant's motion to quash the indictment.
Appellant's third ground of error relates to the participation of the Court in questioning of one of the witnesses.
'Q. (By Mr. Cherry, the ...
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Morrison v. State, 970-91
...the cases cited, the trial judge asked the witness a question because he did not hear what the witness had just stated. Ash v. State, 420 S.W.2d 703 (Tex.Cr.App.1967). In another of the cases cited, the objections were directed at the court's explanations to veniremen of questions being ask......
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