Harris v. State

• Decision Date: 13 November 1931
• Docket Number: No. 14476.,14476.
• Citation: 44 S.W.2d 708
• Parties: HARRIS v. STATE.
• Court: Texas Court of Criminal Appeals

44 S.W.2d 708

HARRIS v. STATE.

No. 14476.

Court of Criminal Appeals of Texas.

November 13, 1931.

Rehearing Granted December 16, 1931.

Commissioners' Decision.

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

Tom Harris was convicted of burglary, and he appeals.

Reversed and remanded.

James A. Harrison, of Beaumont, for appellant.

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

CALHOUN, J.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The evidence shows that the store of one J. E. Sapp at Sabine Pass was burglarized on November 17, 1930. At the time of the burglary, it was shown that some three thousand cigarettes, one thousand cigars, some sugar, rice, bacon, and shotgun shells were taken out of the store.

Appellant's guilty participation in the burglary is shown by the testimony of his accomplice and co-indictee, who was corroborated by other evidence. The appellant did not testify in his own behalf.

The record is before this court without bills of exceptions, and the only matters appearing in the record are certain exceptions and objections to the court's charge. The charge was excepted to because the court did not tell the jury that if the entry in the building was made through an unlatched or unfastened door, the mere opening of the door was not burglary.

Pushing, shoving, or pulling open a door that is closed is sufficient force to constitute a breaking. Branch's P. C. § 2337; Sparks v. State, 34 Tex. Cr. R. 86, 29 S. W. 264; Matthews v. State (Tex. Cr. App.) 38 S. W. 172; Parker v. State (Tex. Cr. App.) 38 S. W. 790; Wagner v. State (Tex. Cr. App.) 47 S. W. 372; Hedrick v. State, 40 Tex. Cr. R. 532, 51 S. W. 252; Jones v. State, 60 Tex. Cr. R. 426, 132 S. W. 476; Hollis v. State, 69 Tex. Cr. R. 286, 153 S. W. 853.

Objection is made to that portion of the charge instructing the jury that the offense need not have been committed on the date alleged in the indictment, but is sufficient if committed on or about the named date. When we revert to the facts in this case, we find that there was no dispute as to the date of the burglary, as alleged in the indictment, and no other time could have been considered by the jury save and except that as fixed, and if there was any error the jury could not have been misled thereby.

Exception was taken to the court's charge on accomplice testimony as being insufficient and defective and not correctly stating the law as to accomplice testimony, or the weight and effect thereof was not applicable to the facts of this case. An inspection of the charge shows that the charge as to accomplice testimony follows the usual form approved by this court, and no error is perceived or pointed out.

No reversible error appearing, the judgment is affirmed.

Affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

The offense was committed on the 17th day of November, 1930. Through his witnesses, the appellant presented the defense of alibi.

Jack Richardson testified that about 2:30 or 3:00 o'clock in the morning the burglary was committed by the witness and the appellant. Richardson's testimony, if believed, is such as to show that he and the appellant were together...