Black v. State

• Decision Date: 16 January 1929
• Docket Number: (No. 12087.)
• Citation: 13 S.W.2d 100
• Parties: BLACK v. STATE.
• Court: Texas Court of Criminal Appeals

13 S.W.2d 100

BLACK v. STATE.

(No. 12087.)

Court of Criminal Appeals of Texas.

January 16, 1929.

Commissioners' Decision.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

L. E. Black was convicted of burglary, and he appeals. Affirmed.

Art. Schlofman, of Dalhart, and C. E. Smith, of Houston, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is burglary; the punishment, confinement in the penitentiary for 12 years.

Appellant and Charles C. Horton were tried jointly. Appellant prosecuted a separate appeal.

The sufficiency of the evidence is challenged. The state relied upon circumstantial evidence which, in our opinion, is sufficient to support the conviction. L. H. Brown ran a store in Highland. On Friday, October 28, 1927, appellant and Horton entered Brown's place of business and purchased a package of cigarettes. Appellant engaged Brown in conversation relative to real estate values in Highland, stating to Brown that he "had made the boom in Florida and felt like the next boom was going to be here." He said he wanted to buy about 15 or 20 acres for a poultry farm. During the time appellant and his companion were in the store they went from the front of the store to approximately the back end. They had entered the front door, but left by way of a side door. As the parties were leaving the store, Brown asked appellant to leave him his name, as he wanted to file it as a prospective customer. Appellant laughed and walked off without telling Brown his name. On Saturday October 29, 1927, Brown's store was burglarized and merchandise of the approximate value of $250 taken therefrom. About $100 worth of the property was recovered after appellant and Horton had been arrested. The arrest of appellant and Horton was made about the 20th of November, 1927. A large quantity of stolen goods was found in the residences of said parties. Some of the articles taken from Brown's store were found in appellant's residence and some in Horton's residence. Brown identified some property as belonging to him. Other parties identified other articles, not claimed by Brown, as having been taken from their possession. While Brown was at the police station in Houston identifying his property, Horton took off a pair of trousers he was wearing and delivered them to Brown. The trousers belonged to Brown. Horton also showed Brown other articles that had been taken from his (Brown's) store. Horton testified that he and appellant purchased the articles claimed by Brown from a man by the name of Bill Smith for $38. He said that he and appellant had a conversation with Smith relative to the purchase of the goods near his (Horton's) house. Horton further stated that he and appellant divided the goods "fifty-fifty." Appellant, testifying in his own behalf, also claimed that he and Horton bought the goods claimed by Brown from Smith. Appellant and Horton were unable to account for the whereabouts of Smith at the time of the trial. Appellant further offered testimony to the effect that he was at another and different place at the time the burglary was committed. It is disclosed by the record that appellant had been indicted in Texas and other states on numerous occasions for various offenses, including burglary and theft.

It is shown by bill of exception No. 1 that after appellant and Horton had been placed under arrest and lodged in jail, Horton picked out several objects lying on the table in the police station and stated to Brown that they belonged to him (Brown), and that he (Horton) had on a pair of trousers that belonged to Brown. Appellant objected to all of said testimony on the ground that he and Horton were under arrest at the time the statements were made and that the provisions of article 727, C. C. P. 1925, relating to confessions, had not been complied with. It was permissible for the state to show that Horton stated to Brown that the trousers he had on belonged to Brown and that he removed said trousers and delivered them to Brown. Horton was in possession of the stolen trousers. As far as is disclosed by the bill of exception, Horton was for the first time being called upon to explain his possession of the stolen trousers. The explanation of possession of property alleged to be recently stolen, made while the possession lasts, if made when the party is first directly or circumstantially called upon to explain, is a part of the res gestæ of possession, and as such is admissible against the accused. Res gestæ is independent of, superior to, and cannot be restricted or limited by the rules relating to confessions or admissions made after arrest. Harris v. State (Tex. Cr. App.) 10 S. W.(2d) 551, and authorities cited. Hence as against the objection interposed by appellant, the testimony relative to the possession of the stolen trousers was properly received. Appellant failed to single out the statements of Horton relative to other articles claimed by Brown, but contented himself with interposing an objection to the entire statement, a part of which was...