Fetters v. State

• Decision Date: 14 December 1927
• Docket Number: (No. 11340.)
• Citation: 1 S.W.2d 312
• Parties: FETTERS v. STATE.
• Court: Texas Court of Criminal Appeals

1 S.W.2d 312

FETTERS v. STATE.

(No. 11340.)

Court of Criminal Appeals of Texas.

December 14, 1927.

Commissioners' Decision.

Appeal from District Court, Wichita County; P. A. Martin, Judge.

Marion Fetters was convicted of burglary, and he appeals. Affirmed.

Allred & Allred, of Wichita Falls, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, burglary; penalty, 12 years.

The insufficiency of the evidence to sustain the conviction is claimed by appellant. A brief rêsumé of the main incriminating facts is as follows:

The store of J. R. Parker was burglarized on the night of February 17, 1927. The knob was knocked off the safe and was found on the floor wrapped in tape. Four dollars and ten cents in silver and something like one hundred twenty-five to one hundred forty pennies were taken. A "chuck pin" used on the meat block disappeared, Parker testified:

"It was in our store on the night of February 17, 1927. * * * It was in a box in the corner of the building, inside of the building. * * * The piece of tape I have here that you have handed me compares with the piece that I found on the knob of the safe, it is just the same."

Officers testified on the morning after the burglary that they visited the home of appellant, who, with his wife and two other persons, was in bed asleep at 9 o'clock in the morning. They found $4.10 in silver and some pennies on the table in the kitchen. They also found a sledge hammer and a chisel and a roll of tape. The roll of tape was the same kind as that found on the knob of the burglarized safe. The silver found corresponded in amount and in denomination to the missing money from the burglarized premises. The "chuck pin" identified by the witness Parker as his own appears to have been found in the car of appellant.

Unexplained recent possession of stolen property obtained from burglarized premises will support a conviction of burglary. Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463. Nor is it necessary to show that appellant took all the missing property, or that all of the missing property was found in his possession. Id. The evidence of identification and other incriminating circumstances, though not strong, were such that we do not feel authorized to substitute our opinion for that of the jury who heard the testimony and are the exclusive judges of the credibility of the witnesses. There was an explanation made of appellant's possession, but all these matters were jury questions and have been found by the jury against appellant, and, there being evidence in our opinion sufficient to sustain such verdict, there was no error in the trial court's action in overruling appellant's contention. Hooton v. State, 53 Tex. Cr. R. 6, 108 S. W. 651; Lynne v. State, 53 Tex. Cr. R. 375, 111 S. W. 729.

The state sought to enhance the punishment of appellant, under article 62 of the Penal Code 1925, reading as follows:

"If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases."

The indictment alleged and the proof showed that appellant had been convicted of burglary in the state of Oklahoma and his sentence originally suspended but afterwards revoked. Objection was made both to the presence of the allegation in the indictment and to proof of the revocation of the original suspended sentence. The term "conviction," as used in article 62 of the Penal Code, refers, we think, to a final conviction. Brittian v. State, 85 Tex. Cr. R. 491, 214 S. W. 351. A judgment of conviction which is suspended does not become final until the suspended sentence has been...