Hasley v. State, (No. 5836.)

• Decision Date: 02 June 1920
• Docket Number: (No. 5836.)
• Citation: 222 S.W. 579
• Parties: HASLEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 579

222 S.W. 579

HASLEY v. STATE.

(No. 5836.)

Court of Criminal Appeals of Texas.

June 2, 1920.

Appeal from District Court, Matagorda County; M. S. Munson, Judge.

Ben Hasley, Jr., was convicted of burglary, and he appeals. Reversed and remanded.

Jno. E. Linn and Styles, Krause & Erickson, all of Bay City, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted of burglary in the district court of Matagorda county, and his punishment fixed at two years' confinement in the state penitentiary.

A motion to quash the indictment is based on the fact that there was no other description of the house in question, save and except that it was then and there under the control of F. J. Spence. If it is necessary in a burglary indictment that it be alleged that the house in question is owned, occupied, and controlled, or is under the care, control, and management of any person, then the motion should have been sustained. The direct question does not seem to have been up in this state, within our knowledge. There appears nothing in our burglary statutes, other than those relating to the burglary of a private residence, which in terms requires any averment of occupancy, ownership, or other description of the house alleged to have been burglarized. It is necessarily true, however, that an indictment for this offense must conform to the general requirement that whatever is necessary to be proved must be alleged, and also that there must be such certainty in the allegation as will put the accused on notice, and enable him to plead the judgment rendered in bar of subsequent prosecutions for the same offense. If the averment that the house in question was then and there under the control of F. J. Spence individualizes the house, and would enable the accused to plead in bar the judgment rendered, this would seem to meet the demands of the law. Examining our authorities, we find that we have upheld indictments where the description of the house was that it was "occupied and controlled by." Pyland v. State, 33 Tex. Civ. App. 382, 26 S. W. 621. Control means to manage, to govern, to have authority over, etc. Anderson v. Stockdale, 62 Tex. 64. Control and management are synonymous. Youngsworth v. Jewell, 15 Nev. 45. In the Lamater Case, 38 Tex. Cr. R. 249, 42 S. W. 304, the trial court charged the jury that a person who is in direct control of the house, and has the exclusive management and control of the property therein, is in law the occupant of said house, and the owner of such property. In an opinion handed down by the present presiding judge of this court this charge of the lower court was upheld. In the instant case, the house in question was a mule barn, the same being a building about 150 feet long by 20 feet wide, and having a harness room at one end, and a feed room at the other. This building was located upon the farm of a Mr. Stoddard, who seems to have had several other farms and much other business; each of said farms being intrusted to the management of a local manager, who was charged with the duty of looking after all of the affairs of the same, including the employment and discharge of men who had various duties to perform under the direction of the local manager of the particular farm. Mr. F. J. Spence was the manager of the farm on which was located the mule barn in question, and the burglarized building was occupied on the night in question actually by the harness and mules; but the same was under the control of Mr. Spence. We think a plea in bar of any subsequent prosecution would needs be upheld under these facts, and that the allegation of control of the house was all that was necessary, and that the motion to quash was properly overruled. We think the house alleged to have been burglarized was sufficiently described to identify it. What we have said will also dispose of the contention that the trial court should not have charged the jury that the offense was made out, if it showed burglary of a house then and there under the control of F. J. Spence.

Appellant urges the insufficiency of the evidence to corroborate the accomplice, and insists that the trial court should have granted his request for an instructed verdict of not guilty. As stated, the premises alleged to have been burglarized was a mule barn, and it was shown in testimony that most of the harness was kept in the harness room at one end of said barn, but because of lack of room some of said harness was hung on pegs out in the barn. It was stated that the mule barn was open, but that every night the harness room, which had only one door, was closed, and the door fastened by a peg which fitted into a staple. It was testified that said door was so closed and fastened on the night in question. Some harness was taken from both the open shed and out of the harness room. On the morning after the alleged burglary, an examination disclosed that 17 collars, 12 bridles, 10 lines, and 7 sets of harness were missing. A search for some evidence as to how the property was taken disclosed the fact that near a corner of the barn lot, a hack or light wagon had been hitched the night before, the indications being that the team had stood at said place for some time, the ground being much trampled. A peculiarly large track, showing no heel to the shoe, and part of the sole gone, was observed, and also another and different track was testified to at the place where the hack had been hitched. Witnesses took the trail of this hack, and followed it for several miles; there having been a very recent rain, which enabled them to easily follow the tracks. The witnesses, following the trail, finally came to a place where the hack stopped, which was near a pasture belonging to appellant; and, at a point a short distance away from the place where the hack stopped, most of the alleged stolen harness was found. The hack was then traced from the point where it stopped to appellant's house, and from there to the home of one Shannon.

Albert Dadrick was placed on the stand by the state, and in his testimony stated that he went with the appellant, at appellant's solicitation, on the night in question, and assisted him in the removal of the harness, and accompanied him from the place where the harness was stolen, along various roads, crossing the Tres Palacios river, and on up Wilson Creek bottom, where, according to Dadrick, the parties concealed the harness in a thicket, at which place he said they separated, he (Dadrick) going on to the home of some kinsman named Smith, and appellant taking the hack and team on with him. This witness said the hack and the team, which was composed of two gray mules, belonged to Shannon, and was borrowed...