Harroll v. State

• Decision Date: 04 May 1938
• Docket Number: No. 19701.,19701.
• Parties: HARROLL v. STATE.
• Court: Texas Court of Criminal Appeals

117 S.W.2d 103

HARROLL v. STATE.

No. 19701.

Court of Criminal Appeals of Texas.

May 4, 1938.

Rehearing Denied June 8, 1938.

Appeal from District Court, Taylor County; M. S. Long, Judge.

John Harroll was convicted of burglary, and he appeals.

Reversed and remanded.

Gray Browne and Stinson, Hair, Brooks & Duke, all of Abilene, for appellant.

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

GRAVES, Judge.

The offense is burglary, and the punishment assessed therefor is two years' confinement in the penitentiary.

There are no bills of exception in the record. The facts show that about October 2, 1937, some one made an unlawful entry into the seed house of the Co-operative Gin at Tuscola in Taylor county, Tex., and abstracted therefrom some six or eight hundred pounds of cottonseed. The entry was made at a bulged or opened seam of the building containing such seed. There were footprints inside of such building at such bulged place, as well as on the outside thereof, as well as seed scattered on the ground. The seed immediately inside such place also bore evidence that they had recently been disturbed. This seam or bulged place was not a place of entry, but seemed to be a large enough aperture for the introduction of a part of or possibly all of a man's body. It appears from the testimony that cottonseed had been taken from the building through such aperture. That such an entry constitutes burglary is clear from the authorities cited in Branch's Penal Code, § 2339, p. 1279: "An entry into a house made at an unusual place with intent to commit a felony or theft, is a burglary by breaking, * * *" and see cases there cited.

The court properly charged the jury on circumstantial evidence, and also defined the term "breaking" as set forth in article 1394 of the Penal Code, and we find no error in his well-phrased charge.

However, the sufficiency of the facts herein has given us much concern. That Mr. Fogle lost about the amount of cottonseed that was found in appellant's truck is clear; that he had no possible way of identifying such cottonseed is equally clear; he had a large amount of seed in his seedhouse; that there were no peculiar characteristics of such seed that would enable him to identify such upon an examination thereof; that the night watchman saw a truck that "looked like appellant's" coming from the general direction of this seedhouse, but he was a block away from it, and could not identify it, nor tell who was in the truck, nor what it contained; that later on that night a truck belonging to appellant, containing about 800 pounds of cottonseed, was found in appellant's father's yard, but appellant was not there at the time. Upon appellant's return thereto, he was informed that such truck had been taken in charge by the officers, whereupon he made the statement that the seed therein belonged to his brother who was moving and who had paid him for moving such seed, and that in the...