Bernal v. State

• Decision Date: 06 June 1906
• Citation: 95 S.W. 118
• Parties: BERNAL v. STATE.
• Court: Texas Court of Criminal Appeals

95 S.W. 118

BERNAL v. STATE.

Court of Criminal Appeals of Texas.

June 6, 1906.

Appeal from District Court, La Salle County; J. F. Mullally, Judge.

Bernaldino Bernal was convicted of theft, and he appeals. Reversed and remanded.

C. C. Thomas, for appellant. J. E. Yantis, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of theft, and his punishment fixed at confinement in the county jail for six months.

Appellant insists the case should be reversed because the jury was not authorized under the indictment to convict of theft. The indictment charges burglary—that is, breaking of the house with intent to commit theft —and then, in the same count, charges appellant with theft. We understand this form of indictment is permissible; that is, both burglary and theft may be charged in the same count in the indictment or information. Dunham v. State, 9 Tex. App. 330. Unquestionably under such an indictment a party may be convicted of burglary, and such conviction will be a bar to any subsequent prosecution for theft committed in the same burglary. Dunham v. State, supra; Miller v. State, 16 Tex. App. 418; Turner v. State, 22 Tex. App. 42, 2 S. W. 619; Williams v. State, 24 Tex. App. 69, 5 S. W. 838. If, under such conviction for burglary where the indictment contains a charge for both burglary and theft, it will be a bar to a subsequent prosecution for theft, of course, a conviction for theft will be a bar to a subsequent prosecution for the burglary. We hold that the conviction for theft under this indictment was a proper conviction. The indictment was not vicious which contained in the same count both offenses properly alleged.

Appellant contends that the court should have admitted the testimony which he attempted to introduce on cross-examination, to the effect that prosecuting witness had money in the house at the time of the alleged burglary. If the bill had shown that the money was with the watch and in view of the party who may have taken the watch, and that the same was not taken, the testimony might have been relevant, but it is not so stated in the bill. We cannot presume in favor of the bill that the money was in juxtaposition, or so close to the watch as that one taking the said watch was bound to notice the money. If said money was not taken, then there might be something in appellant's proposition; but as presented in the bill we fail to see that the action of the court was erroneous.

It does not occur to us that there was any error in the action of the court permitting the witness Hall to testify as to the value of the watch. The fact that his name was not on the back of the indictment did not render him incompetent as a witness; nor that he was not summoned as a witness before the announcement of appellant as ready for trial; nor that said Hall was one of the jurors drawn to try this cause, and did not disqualify himself as one of the...