Clinton v. State

• Decision Date: 03 March 1937
• Docket Number: No. 18845.,18845.
• Parties: CLINTON v. STATE.
• Court: Texas Court of Criminal Appeals

104 S.W.2d 39

CLINTON v. STATE.

No. 18845.

Court of Criminal Appeals of Texas.

March 3, 1937.

Rehearing Denied April 21, 1937.

Commissioners' Decision.

Appeal from District Court, Franklin County; I. N. Williams, Judge.

Bill Clinton was convicted of burglary, and he appeals.

Affirmed.

Wilkinson & Wilkinson, of Mt. Vernon, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Appellant was convicted of the offense of burglary, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

The record before us shows that on the night of April 8, 1934, appellant and Pete Scott broke the rear door of J. M. Parchman's store and entered it. The night watchman, who heard the breaking of the glass, summoned the sheriff, who found appellant and Pete Scott therein. He arrested both of them and escorted them to jail. Appellant, who alone was on trial, did not testify. His main contention was that he was temporarily insane from the recent use of ardent spirits. His first complaint is that the court erred in declining to instruct the jury on the law of circumstantial evidence. It is the well-settled rule in this state that if there be direct testimony from any source that the defendant broke and entered the building or participated in the breaking and entering thereof, and the only question to be determined by the jury is the intent with which the entry was made, then a charge on circumstantial evidence is not required. In the case of Russell v. State, 38 Tex. Cr.R. 590, 44 S.W. 159, 161, this court said: "The rule requiring the giving of a charge on circumstantial evidence is proper when the act which is claimed to be criminal is sought to be established by circumstantial testimony; but when the act is proved by direct testimony, and all that remains to be found is the intent which accompanied the act, and which may be inferred from the circumstances accompanying the act, then this principle does not apply." See Pullen v. State, 70 Tex.Cr.R. 156, 156 S.W. 935; Flagg v. State, 51 Tex. Cr.R. 602, 103 S.W. 855; Williams v. State, 58 Tex.Cr.R. 82, 124 S.W. 954. Hence under the authorities above quoted we do not think the court erred in declining to instruct the jury on the law of circumstantial evidence.

Appellant's next complaint is that the court erred in his instruction to the jury on the law of temporary insanity produced by the recent use of ardent spirits, to which he objected on the ground that it was on the weight of the evidence, that it did not properly apply the law to the facts, and assumed the defendant to be guilty. Article 658, C.C.P.1925, as amended by Acts 1931, c. 43, § 5 (Vernon's Ann. C.C.P. art. 658), requires that objections to the court's charge be in writing and distinctly specify each ground of objection. The objections here urged to the court's charge are too general and do not point out to the trial court in what particular the charge is erroneous. See Gill v. State, 84 Tex.Cr.R. 531, 208 S.W. 926.

By bills of exception Nos. 5, 6, and 7, appellant complains of the action of the trial court in permitting the district attorney to prove by the night watchman what appellant said while in the burglarized building after the sheriff arrived and commanded the appellant to come out; and also what he said after he had been taken to jail about obtaining bond. Appellant objected to it on the ground that he was under arrest. The court in his qualifications of the bills states that he admitted the testimony because it was res gestæ. We see no error in this ruling. Whatever is said by a party to the transaction which is pertinent to the matter under investigation is a part of the transaction and is admissible in evidence. The statements objected to were not of an incriminatory nature. They merely tended to show that appellant's mind was not seriously affected by the recent use of ardent spirits; but even if it was, it would not be any defense under article 36, P.C.1925, and could only be considered by the jury in mitigation of the punishment. We therefore overrule his contention.

Bills of exception Nos. 8, 9, 10, and 12 have been considered by us and deemed to be without merit.

Bill of exception No. 11 fails to show what answer the witness would have made to the question propounded. Hence no reversible error is shown.

The argument complained of in bill of exception No. 13 was an illustration based upon testimony adduced at the trial. We find nothing in the record to show that theretofore one of the juror's barns had been burned, but even if it were true, we do not see how the argument complained of could have injuriously affected the appellant's legal rights.

Finding no reversible error in the record, the judgment of the trial court is in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

HAWKINS, Judge.

In our original opinion we inadvertently stated that appellant did not testify. He did testify, claiming that he was so drunk that he had no recollection of being in the store. Our opinion has been corrected in the particular mentioned.

In his motion for rehearing appellant renews his complaint that the court did not charge on circumstantial evidence. The breaking of the glass in the door to the store was shown by positive evidence. The night watchman heard the glass break and he telephoned the sheriff. He and the watchman found appellant and his companion in the store. The following cases are direct authority upon the point that no charge on circumstantial evidence was called for under the facts: Montgomery v. State, 55 Tex.Cr.R. 502, 116 S.W. 1160; Smith v. State, 51 Tex.Cr.R. 427, 102 S.W. 406; Smith v. State (Tex.Cr.App.) 90 S.W. 638; Holland v. State, 45 Tex.Cr.R. 172, 74 S.W. 763.

Appellant testified that he had been drinking all day preceding the burglary and was so drunk he did not remember going in the store or of having been found there by the officers. Article...