Davidson v. State

• Citation: 216 S.W. 624
• Decision Date: 19 November 1919
• Docket Number: (No. 5431.)
• Parties: DAVIDSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 624

216 S.W. 624

DAVIDSON v. STATE.

(No. 5431.)

Court of Criminal Appeals of Texas.

November 19, 1919.

Appeal from District Court, Erath County; J. B. Keith, Judge.

Raymond Davidson was convicted of burglary, and he appeals. Affirmed.

J. A. Johnson, of Stephenville, for appellant.

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

LATTIMORE, J.

Appellant was convicted of burglary in the district court of Erath county, and his punishment fixed at two years' confinement in the penitentiary.

The indictment contains two counts, one alleging occupancy of the house in W. L. Hunt, and the other in C. A. Hunt. It was held in Pyland v. State, 33 Tex. App. 382, 26 S. W. 621, that an allegation of occupancy alone is sufficient.

Appellant made a motion for continuance, because of the absence of the witnesses Fincher and Lewallen, which was overruled. Fincher appeared and testified, and the diligence used to obtain the testimony of Lewallen was not sufficient. The indictment was filed January 4, 1919, and soon afterwards subpoenas were issued for a number of witnesses; but the subpoena for the witness Lewallen was not procured until February 8th, and was returned "Not served, said witness not being found within the county." The case against appellant was called for trial February 15th. No reason or excuse is shown for failure to sooner secure the issuance of said subpœna.

Appellant's bill of exceptions No. 2 shows that he made a special motion for continuance, on the ground that there was not a regular jury present to try his case, setting up in said motion that all of the other jurors on the panel disqualified, save and except five; that to compel him to go to trial with only that number of qualified jurors present would deprive him of a trial by a jury selected by the jury commissioners. This motion was properly overruled. The provision of chapter 4, title 8, of our C. C. P., providing for the formation of juries in cases less than capital, specifically takes care of any case where, from any cause, the number of jurors in the box or panel is reduced below the number required. If, after the law was followed by the court, in sending the sheriff for jurors, objectionable jurors were attempted to be forced upon appellant, he had his proper remedy by objections setting forth proper grounds for disqualification.

Claiming that the evidence did not support the allegation of occupancy of the alleged burglarized house on the part of either W. L. Hunt or C. A. Hunt, appellant asked an instructed verdict of not guilty. The evidence shows that W. L. Hunt owned said house, and on September 12, 1918, he closed it up and went to California, and that prior to leaving, he requested C. A. Hunt, his brother, who lived some miles away, to look after his things and keep the doors closed, if they happened to be open. W. L. Hunt left his household goods stored in one room of his house. He also left his stock in the pasture, feed in the crib, etc.

We do not deem it necessary, in order to constitute occupancy, within the meaning of the burglary statute, that there be the actual corporeal presence of the alleged occupant in the house at the time. In Moore v. State, 48 Tex. Cr. R. 400, 88 S. W. 230, this court held the term "occupancy" as equivalent to "possession." In Tidwell v. State, 45 S. W. 1015, we held "occupancy" tantamount to "ownership." One may occupy premises miles away from his sleeping, eating, or staying quarters, by keeping his goods there, or by other means not necessary here to enumerate. We think the allegation of occupancy was met by the evidence, and that the requested instruction was properly refused. In this connection we further observe that there was a general verdict of guilty, without special reference to either count of the indictment, and in such case we would apply this to either of the two counts. We have carefully noted the authorities cited, but do not think they hold different to this opinion.

The complaint is not well founded that the court erroneously instructed the jury that, where the...