Giacona v. State

Decision Date07 June 1933
Docket NumberNo. 15971.,15971.
Citation62 S.W.2d 986
PartiesGIACONA v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from Criminal District Court, Jefferson County; R. L. Murray, Judge.

Sam Giacona, alias Sam Lacona, was convicted of burglary, and he appeals.

Reversed and remanded.

W. J. Baldwin, of Beaumont, for appellant.

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

MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement in the penitentiary for twelve years.

The evidence is wholly circumstantial. The facts relied upon by the state, as understood, are as follows: The building occupied by the Linn Bros. Motor Company was entered during the night of August 20, 1932. No property was taken therefrom. Three years prior to the present entry, the appellant had entered the same building and had been convicted therefor and served his sentence. The manner of the entry at that time is not disclosed in the present record. It is claimed that the entry now under consideration was made by forcing an outside window and then another window giving entrance to the office in the building. The print of a rubber heel of a shoe was observed by an investigator and expert who came from Houston (after the commission of the offense) to Beaumont, the place where the building entered was situated. The expert investigator found on the white-painted windowsill at the office in the building the heel print mentioned. The cogent evidence relied upon by the state centers upon the testimony of the expert investigator who, by comparison of photographs, identified the print on the office windowsill with the heel of a shoe worn by the appellant a short time after his arrest. The evidence does not disclose the length of time that the print had been on the windowsill. It fails to show that it was not there before the present entry was made. In that particular the facts are analogous to those appearing in the case of McGarry v. State, 82 Tex. Cr. R. 597, 200 S. W. 527; also Graves v. State, 119 Tex. Cr. R. 68, 43 S.W.(2d) 953, and Weathered v. State, 119 Tex. Cr. R. 90, 46 S.W.(2d) 701. The state's testimony tends to exclude any theory suggesting the appellant's personal connection with the car rented at Houston and seen at Beaumont. The testimony of the state discloses that at the time of his arrest the appellant was at his home in bed, that, after his arrest, he dressed and accompanied the officers, and that the heel used by the state for comparison was taken from the shoe worn by the appellant after he was arrested.

Photographs of the print on the windowsill and of the heel of the shoe mentioned were made by the expert and identified upon the trial. These photographs were enlarged. The expert testified:

"The reason these photographs were taken and enlarged to this size was in order to see what actually happened in both of the prints without the use of a microscope. * * *

"I found by a study of these two photographs twenty-one points of similarity or identity between these two prints."

The expert went into great detail with reference to the points of similarity. These details related to a number of small items or points in which there was developed by the enlarged photographs similarity between the heel and the print on the windowsill. As understood, all the points were such as could be identified only by means of a microscope. However, it was shown that upon the enlarged pictures the claimed similarity was visible to the naked eye. The witness testified further: "The reason I said they were photographed was to enlarge them so as to see them without the aid of a microscope. Those very tiny scars are very hard to see with the naked eye without some kind of magnification. The reason the circles appear white on the photographs instead of black is that we use a fine white powder to cover the circles in the print of the heel with in order to form some kind of contrast and keep it all from being the same color."

By his own testimony and by...

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11 cases
  • United States v. Knohl
    • United States
    • U.S. Court of Appeals — Second Circuit
    • 22 June 1967
    ...152 Tex. Cr.R. 321, 213 S.W.2d 681; or when the defendant has testified and the State seeks to impeach his credibility, Giacone v. State, 124 Tex.Cr.R. 141, 62 S.W.2d 986." Although these citations are largely to Texas authorities, the footnote appended to this portion of the Supreme Court ......
  • Spencer v. State of Texas Bell v. State of Texas Reed v. Beto 8212 70
    • United States
    • U.S. Supreme Court
    • 23 January 1967
    ...152 Tex.Cr.R. 321, 213 S.W.2d 681; or when the defendant has testified and the State seeks to impeach his credibility, Giacone v. State, 124 Tex.Cr.R. 141, 62 S.W.2d 986. Under Texas law the prior convictions of the defendants in the three cases before the Court today might have been admiss......
  • State v. Prieur, 52365
    • United States
    • Louisiana Supreme Court
    • 19 February 1973
    ...152 Tex.Cr.R. 321, 213 S.W.2d 681; or when the defendant has testified and the State seeks to impeach his credibility, Giacone v. State, 124 Tex.Cr.R. 141, 62 S.W.2d 986.' These statutes have withstood attack against a claim that they violated the federal Bill of Rights. They are, therefore......
  • People v. Campbell
    • United States
    • Illinois Supreme Court
    • 30 January 1992
    ...of dissimilarity, and 11 different identifying points or marks that were not built into the shoe heel); see also Giacone v. State (1933), 124 Tex.Crim. 141, 62 S.W.2d 986 (21 points of similarity observed); People v. Henne (1988), 165 Ill.App.3d 315, 116 Ill.Dec. 296, 518 N.E.2d 1276 (facts......
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