Davis v. State

• Decision Date: 18 December 1907
• Citation: 107 S.W. 855
• Parties: DAVIS v. STATE.
• Court: Texas Court of Criminal Appeals

107 S.W. 855

DAVIS v. STATE.

Court of Criminal Appeals of Texas.

December 18, 1907.

Rehearing Denied February 19, 1908.

Appeal from District Court, Hopkins County; R. L. Porter, Judge.

Dude Davis was convicted of burglary, and he appeals. Affirmed.

Leach & Allen and Templeton, Crosby & Dinsmore, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, and his punishment assessed at two years' confinement in the penitentiary.

The facts, as disclosed by this record, in substance show the following: Ike Randolph owned a barber shop in Sulphur Springs, Hopkins county, Tex. He had rented the same, in the first instance, to Harvy Dillingham. Afterwards Dillingham left and went to the Indian Territory, and the building was rented by Ike Randolph to Richard Mayo. On Saturday night, the 1st day of December, 1906, some one entered the barber shop through a window on the back side thereof and took out of the barber shop a razor belonging to said Mayo. Mayo secured the services of a third party, and gave to said party 50 cents, with instructions to go to the defendant's home and see if he (said party) could buy a razor answering certain description from the defendant. He went with said 50 cents and purchased a razor, returned with same, and delivered it to Mayo. Thereupon Mayo sent for appellant, and appellant confessed to the said Mayo that he had entered his barber shop and secured the razor; that he entered through the window, as stated, in the nighttime. Mayo informed him that he (Mayo) would not do anything about the matter if he would give up his 50 cents, which appellant did. Thereupon Mayo informed appellant that he had better see the owner of the building, Ike Randolph, and pay him for tearing the screen out of the window, through which window the entry had been made. Defendant told Randolph that he would pay him 50 cents for the damage. At first Randolph declined to take this amount, but subsequently told appellant and his mother that if they would pay him $5 he would do nothing further about it. The witness Mayo did not miss his razor until he went to the barber shop Sunday morning after the burglary to shave himself, and then discovered the absence of the razor, and also noted that the screen on the back window, which he had fixed when he took charge of the building, had been torn loose. Mayo admits that the screen had a large hole in it at the time he rented the building from Randolph, succeeding as a tenant the said Dillingham.

Appellant's counsel discussed before this court two propositions, to wit: The defendant presented an application for continuance, among other things, for want of the testimony of the said Harvy Dillingham, who lived at the time in the Indian Territory, stating that he prepared depositions, which had been properly crossed, by which witness he expected to prove that he (Dillingham) was proprietor of said barber shop before and immediately up to the time that same came into the possession of the present owner, Richard Mayo, about the 1st of August, 1906, and that for a number of months before he sold to Mayo, and at that time, there was a rent in the screen of the door and the windows large enough for most any one to go through, and that the opening in the window was used for throwing out water and putting wood into the house. The district attorney admitted the truth of such testimony. Defendant excepted, for the reason that defendant had a right to have the testimony of the witness himself in court, through depositions, which would be more effective before the jury than formal admission. The court overruled the application on this ground, and the trial proceeded; and Richard Mayo was placed upon the stand by the state, and was asked the condition of the screen of the window during the time he had possession of the shop, to which the witness answered that same had been in good condition all the time, from the 4th of August, 1906, to the present time, he...