Giacona v. State
Decision Date | 07 June 1933 |
Docket Number | No. 15971.,15971. |
Citation | 62 S.W.2d 986 |
Parties | GIACONA v. STATE. |
Court | Texas 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.
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 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:
By his own testimony and by...
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