Cantwell v. State
| Decision Date | 18 April 1973 |
| Docket Number | No. 46042,46042 |
| Citation | 493 S.W.2d 242 |
| Parties | Wayne CANTWELL, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
George J. Parnham, Houston, for appellant.
Jim D. Vollers, State's Atty., and Robert A. Huttash, Asst. State's Atty., Austin, for the State.
This is an appeal from a conviction for the offense of burglary with intent to commit theft. The punishment was assessed at three years.
The sufficiency of the evidence is not challenged.
In his first ground of error, appellant contends that the indictment is fatally defective because the same does not allege ownership of the property that appellant is alleged to have intended to steal.
The indictment, omitting the formal parts, alleges that appellant and two others, on or about the 8th day of March, 1971, 'did unlawfully by force, threats, and fraud, break and enter a house then and there occupied and controlled by Dudley Prade, with intent then and there to fraudulently take therefrom corporeal personal property therein being and then and there Belonging to the said Dudley Prade, from the possession of the said Dudley Prade, without his consent and with the intent then and there to deprive the said Dudley Prade of the value thereof, and to appropriate the same to the use and benefit of' appellant and his co-principals. (Emphasis supplied).
The indictment sufficiently alleges the ownership of the property that appellant intended to take. This ground of error is overruled.
In his second ground of error, appellant contends that 'the trial court committed reversible error in admitting in evidence, over the objection and exception of counsel, the purported marriage license of the appellant and one Nancy Kay Barr for the reason that the same was not shown to be relevant to any issue, nor was there any showing that appellant and the person named in the license were one and the same.'
On March 8, 1971, Dudley Prade's ranch house and barn were broken into without his consent. Certain cooking utensils, including a pressure cooker, had been removed from the house. Several saddles had been removed from his barn. Appellant was identified as one of the three persons who were present at the time of the burglary. Upon the approach of an officer, appellant and another fled. An automobile which was parked near the ranch house and barn contained one of the stolen saddles and some of the stolen cooking utensils. This car was shown to be registered to one Nancy Kay Barr. The marriage license was relevant to show that the automobile which contained the stolen property belonged to appellant's wife. Further, appellant's mother testified without objection that he was married to Nancy Kay Barr.
In Amaya v. State, Tex.Cr.App., 473 S.W.2d 476 (1971), this Court stated:
No objection was made to the admission of the marriage license on the ground...
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Oliva v. State
...are admissible in evidence against him where the accused was not under arrest at the time such statements were made." Cantwell v. State, 493 S.W.2d 242 (Tex.Cr.App.1973). Appellant contends that the deceased committed an unprovoked attack upon him, and that he killed the deceased unintentio......