Cummings v. State

• Citation: 219 S.W. 1104
• Decision Date: 24 March 1920
• Docket Number: (No. 5713.)
• Parties: CUMMINGS v. STATE.
• Court: Texas Court of Criminal Appeals

219 S.W. 1104

CUMMINGS v. STATE.

(No. 5713.)

Court of Criminal Appeals of Texas.

March 24, 1920.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

K. Cummings was convicted of burglary, and he appeals. Reversed, and cause remanded.

Lester, Farmer & Farmer, of Waco, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of burglary and allotted two years in the penitentiary.

Possession of the burglarized house was alleged to be in Aubrey Evans. This possession is attacked by appellant as being insufficient in law. Evans was a discharged soldier and was occupying the house for a few days, sleeping in it at night during the absence of his uncle and aunt, owners of the property. We are of opinion that under the authorities this was sufficiently his private residence to allege such possession, in a burglary of a private residence. We deem it unnecessary to discuss this matter at length. The question has been many times before the court. See Holland v. State, 45 Tex. Cr. R. 172, 74 S. W. 763; Lewis v. State, 54 Tex. Cr. R. 636, 114 S. W. 818; Johnson v. State, 52 Tex. Cr. R. 201, 107 S. W. 52; Dowling v. State, 63 Tex. Cr. R. 366, 140 S. W. 224; Payne v. State, 67 Tex. Cr. R. 161, 148 S. W. 694. There was no question of the fact that the house was the private residence of the uncle of Evans, and that he and his wife, owners, were absent, and that Evans was sleeping in the house and keeping it as his sleeping apartment during their absence.

To meet appellant's account of his possession of the shoes he sold his father, the state used Stallard as a witness. He denied selling the shoes to appellant, and testified himself, as did his father, that he was at home on the night of the burglary in bed sick with pneumonia, and had been for some time previous to the burglary and for some time thereafter. This testimony was used to combat appellant's explanation of his possession of the stolen property, which explanation was introduced by the state. This explanation was intended, and would have had the effect if true, to exonerate appellant. The state had introduced appellant's account of his possession of the property as having been received from Stallard. Stallard and his father were therefore used to disprove this statement by proving an alibi for the younger Stallard on the night of the burglary. The state's theory was that appellant and not Stallard committed the burglary, and to show this introduced Stallard and other witnesses. The only evidence, as we understand this record, that could have been relied on to sustain the charge on principals, was that appellant was in possession of a pair of shoes which he claims to have bought from Stallard, and a week or some days after the burglary Stallard disposed of property also taken from the house. His explanation of his possession of the property, the evidence of his alibi, and the facts that show he was not present at the time of the burglary and could not have been, do not constitute Stallard a principal. Appellant denies his presence at the burglary; therefore the defensive theory was that he was not acting with Stallard. He was showing his innocence and indirectly seeking to establish the guilt of Stallard by his statement and his testimony that he received the shoes from Stallard. Stallard proved an alibi by himself and others on the night of the burglary, the facts having been sufficiently stated in this connection, and therefore he was not at the place of the burglary nor a participant in the crime. So far as the writer has been able to understand this record, there is no evidence connecting Stallard with the burglary except appellant's statements and Stallard's testimony that something like a week after the burglary appellant brought him some of the stolen goods, which he sold for appellant; but this testimony does not connect him with the...