Harrison v. State, 27708
| Decision Date | 26 October 1955 |
| Docket Number | No. 27708,27708 |
| Citation | 284 S.W.2d 367,162 Tex.Crim. 301 |
| Parties | Clyde W. HARRISON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Fisher & Reavley, Jasper, for appellant.
J. L. Smith, Dist. Atty., San Augustine, Leon B. Douglas, State's Atty., Austin, for the State.
The conviction is for burglary; the punishment, 2 years in the penitentiary.
The Methodist Church at Call, Newton County, Texas, owned a house for use as a parsonage, which was furnished. It was not occupied at the time in question, the church being without a pastor.
A day or two before December 10, 1954, a neighbor noticed that the back door of the house was open, and on December 10 reported such fact.
An examination of the premises on that date revealed that the locked door had been broken open, and various items were missing, including a wood heater, a butane heater, mattress, and other household goods.
The house was again locked or nailed closed, and inquiries begun in an effort to apprehend the guilty party.
Before any of the inquiries bore fruit, the house was again found to have been burglarized by someone, and all of the remaining contents were missing except 'the refrigerator and vacuum'.
In addition to the property missing from the house, on the first occasion, the yard gate was gone and after December 10th the propane gas tank disappeared.
On February 1, 1955, practically all of the property missing from the parsonage was found at appellant's home. The wood heater was 'put up' in the back room, the mattress was on the bed in the back room; the yard gate was on the porch and the gas tank was in the yard.
Appellant's first explanation, according to the State's witnesses, was that he had purchased the property from a Negro. While under arrest, he stated that it was a yellow Negro, and after his release on bond he stated that it was a black Negro, according to the State's Witness Cansler. He testified at the trial that he purchased it from a man whose description and the description of his truck met that of one Happy Jack Hinson, a cripple who dealt in scrap iron.
Hinson appeared as a witness for the State and testified in effect that he had no connection with the property or theft and did not drive his truck because of his disability. Appellant declined to positively identify him as the person from whom he claimed to have purchased the property.
It is significant to note that according to appellant's testimony a week before his arrest he purchased the gas tank which was taken from the premises of the parsonage some time after December 10, 1954, and at the same time and from the same truck received the other property, including a yard gate, a wood heater and a mattress, which had been taken from the house prior to December 10.
There is sufficient evidence to support a finding that appellant's explanation of his possession of the recently stolen property which was missing from the burglarized building was false.
We overrule the contention that the evidence is insufficient to sustain the conviction.
The testimony relating to the second burglary and to the theft of the gas tank was clearly admissible, the fruits of the crime having been found in the possession of appellant, and his explanation of such possession being the same as to the property taken on the first and subsequent occasions.
The bill of exception complaining of the testimony of Hal Cansler, that on the night appellant was arrested he told him that he bought the property from 'a yellow Negro', was qualified to show that no objection was offered to said testimony until the witness was on cross-examination. The record shows that the court thereafter instructed the jury to disregard the testimony, the defendant being under arrest when the statement was made.
As qualified, the bill does not show reversible error.
The verdict returned by the jury and received and ordered entered by the court reads as follows:
'The verdict of the petit jury impaneled to hear the case of The State of Texas vs. Clyde W. Harrison is that we find the defendant guilty and do hereby sentence him to a term of two years in the penitentiary with the recommendation that he receive time off for good behavior.
'C. E. Ebner, Foreman'
The question presented in regard to the verdict is, may the concluding statement 'with the recommendation that he receive time off for good behavior' be rejected as surplusage, or does such recommendation of the jury vitiate the verdict?
Appellant argues that the trial court had no right to accept the verdict, but having done so may not disregard a portion thereof and accept a portion after the jury has been discharged.
The verdict, being informal, should have been corrected at the time it was returned into court and before the jury was discharged. It does not follow that a reversal is called for if the verdict as returned is sufficient. Layman v. State, 126...
To continue reading
Request your trial
-
Ex parte Johnson
... ... Holmes, Jr., Dist. Atty. and Karrie Key, Asst. Dist. Atty., Houston, Robert Huttash, State's Atty., Austin, for the State ... Before the court en banc ... A trial court "cannot render a verdict or any part thereof," Harrison v. State, 162 Tex.Cr.R. 301, 284 S.W.2d 367 (1955). When Judge Woodley wrote that he was echoing ... ...