Bird v. State

• Decision Date: 13 December 1905
• Citation: 90 S.W. 651
• Parties: BIRD v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 651

BIRD v. STATE.

Court of Criminal Appeals of Texas.

December 13, 1905.

Appeal from District Court, Harris County; J. K. P. Gillaspie, Judge.

Jim Bird was convicted of burglary, and appeals. Reversed.

Rehearing denied December 20, 1905.

Reynolds & Barkley, for appellant. W. C. Oliver, Dist. Atty., E. T. Branch, and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This conviction was for burglary. The court charged the jury, as follows: "If defendant entered the house on the invitation of one Will Shelton, for the purpose of only going in there to sleep, then he would not be guilty; and, if you so find, find him not guilty." Several objections are urged to this charge, to wit: It shifted the burden of proof. It required the jury to believe that he entered the house on the invitation of Will Shelton, and for the purpose only of sleeping in there, before an acquittal could be obtained. It limits the acquittal to an affirmative belief of that fact, and that he could not be acquitted unless he entered the house on the invitation of Shelton, and only for the purpose then of sleeping in said house. We believe these exceptions, under the facts, are well taken. Isaac Parsons was the cousin of Shelton, and was the bartender of Elliott (the alleged owner). Parsons had invited or requested appellant to open the saloon on the morning this burglary should have occurred. The breaking occurred about 2 o'clock at night. The request by the bartender of Shelton was to open the saloon that morning. The owner (Elliott) testified that he had been notified his house would be opened up on the night of the succeeding day after he was so notified; that on the night of the burglary he hid the key at a designated point, and that Parsons (his bartender and cousin of Shelton) knew where the key was placed. Voss (one of the four officers watching the house on the night of the alleged breaking) stated they had information four or five days previous that there would be an attempt to break this house. Shelton did not inform the officers, but told his cousin (Parsons, the bartender). Defendant testified that on the night of the burglary he was at the house of a woman named Roxy—and in this he is corroborated by Shelton and Roxy—when Shelton called for him. He got up and went with Shelton, ostensibly to a dance, but did not go to the dance. After starting for that purpose, at the instance of Shelton they changed their intention, and went to the saloon, for the purpose of sleeping in the saloon. His testimony on this point is as follows: "And then I said, `Let's go on home,' and I turned to go back, where Roxy was, and he said, `No, let's go down to the saloon and sleep; that is where I sleep.' I said, `Well,' and when we went on down to Harvey's saloon, and went on back to the back door (like this is the door, right here), Will Shelton got the key. He had the key. I never had the key in my hand. He opened the door, and I goes in to get some quilts and pillows to make us a pallet out in the saloon to sleep there, and just as I stopped to pick up the mattress inside, just the minute I stepped inside, I struck a match (like this) and was holding it up, and just at that time Officer Voss came up right behind me with his gun right at my back. I says, `What is the matter, Mr. Voss?' And he says, `You will find out...