Hill v. State

• Decision Date: 26 March 1903
• Citation: 73 S.W. 9
• Parties: HILL v. STATE.
• Court: Texas Court of Criminal Appeals

73 S.W. 9

HILL v. STATE.

Court of Criminal Appeals of Texas.

March 26, 1903.

Appeal from District Court, Lampasas County; John M. Furman, Judge.

Vernon Hill was convicted of burglary, and appeals. Reversed.

W. H. Browning and Walter Acker, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was convicted of burglary, the penalty assessed being two years' confinement in the penitentiary.

By the first bill of exceptions it is made to appear that the accomplice, Engram Murray, was permitted to testify that on the night of the 4th of August, 1902, he went to the saloon of J. A. Tillman, and by appointment found appellant there, and remained until 1 o'clock. That afterwards he and defendant went to a chile stand, waked up the Mexican, ate a plate of chile and a watermelon. Subsequently witness and defendant proceeded to the saloon occupied by Tillman, and witness broke a pane of glass out of the window, removed the stick from top of window, and witness and defendant entered the saloon, with the intention of taking the money they might find; and before they had time to take anything from the saloon they heard some one ride up to the back of the saloon, whom they recognized as City Marshal King. King called to them to come out. That witness pulled off his shoes, and told defendant to do likewise, and started to the front door, and, hearing noises at the front door on the outside, they broke open a door on the inside of the saloon, leading upstairs; and finally witness and defendant got out on the tin roof of an adjoining building, and then got off the building, and witness told defendant to crawl under the house, and witness did crawl under the house, and saw no more of defendant. When defendant was last seen by witness he was in the alley between the two buildings, one of which witness crawled under, where witness was captured about daybreak, and placed in jail. That after said witness Murray had testified as detailed the state, over the objections of appellant, was permitted to prove by witness Murray the following: That, after having left the saloon of Tillman at the time it was closed up, a few minutes after 1 o'clock, and before witness and defendant had wakened the Mexican at the chile stand, witness and defendant went down East Third street to Polsgrove's corner, turned to the right between Lampasas Hotel and Mrs. Rugeley's boarding house, and went out and stopped under a mesquite tree; and from there proceeded in the direction of a lumber yard, and turned up an alley, went to the rear of W. M. Patton's saloon, which fronts on the public square of Lampasas, and a distance of 50 yards from J. A. Tillman's saloon, which defendant is charged with burglarizing in the case on trial; that when they reached the rear of Patton's saloon defendant took a rock and broke a pane of glass in the window, raised it, and both witness and defendant entered Patton's saloon; that witness had worked in the saloon prior to that time, and knew the location of the money drawer; that they did not strike a light, but went behind the bar, and witness found and pulled open the money drawer, and got therefrom $2.10 in money in quarters, dimes, and nickels; that defendant said, "`I will get a bottle of whisky;' that witness did not want whisky, and does not know whether defendant got any whisky." Witness then details the whereabouts of himself and defendant after the burglary of the Patton saloon. Appellant objected to said testimony in so far as the same tended to show and did show the burglary of the Patton saloon, because immaterial, inadmissible, and threw no light upon the burglary of Tillman's saloon, for which defendant was on trial; and because it clearly appeared that the burglary of Patton's saloon and the burglary of Tillman's saloon were separate and distinct offenses committed at different times and places; and because the burglary of Patton's saloon had been fully completed before any attempt was made to burglarize Tillman's; and because the burglary of Tillman's saloon was not contemplated between the parties until after the burglary of Patton's saloon, and the burglary of the Patton saloon did not in any...