Hollobaugh v. State

• Decision Date: 20 February 1924
• Docket Number: (No. 8145.)
• Citation: 258 S.W. 1064
• Parties: HOLLOBAUGH v. STATE.
• Court: Texas Court of Criminal Appeals

258 S.W. 1064

HOLLOBAUGH v. STATE.

(No. 8145.)

Court of Criminal Appeals of Texas.

February 20, 1924.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Victor Hollobaugh was convicted of burglary, and he appeals. Affirmed.

A. M. Mood, of Amarillo, for appellant.

Tom Garrard, State's Atty., and Grover C. Morris, Asst. State's Atty., both of Austin, for the State.

LATTIMORE, J.

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

Mr. Scott with a partner were engaged in the dairy business, and had purchased a large quantity of corn through Mr. Wrather from Mr. Hunter. Scott's barn was entered and a quantity of the corn in sacks removed, and a trail of corn and tracks led down to where an automobile had stood. At one place there were evidences that a sack of corn had come open and some of its contents which had escaped were scraped up. Shortly after the loss of the corn upon information received Mr. Scott obtained a search warrant and went with officers to appellant's barn and there found five full sacks and one partially filled; the contents being the corn belonging to Mr. Scott which had been taken from his barn, same being identified by Mr. Scott, his partner, Mr. Wrather, and Mr. Hunter. One sack had in it clods and dirt similar to that at Scott's place. Their description of the corn appears so complete and convincing that but little, if any, doubt could remain as to its identity. It was mixed corn, about one-fourth being red and the remainder yellow and white.

While the state was making out its case in chief and before any evidence on behalf of appellant had been introduced, a question was asked state witness Scott by the district attorney which to the learned trial judge seemed to call for testimony believed by him inadmissible because the accused was under arrest. A colloquy arose in which the court stated that the evidence was inadmissible because "they had already found the corn." Appellant's counsel objected to the court saying they had found "his corn." The court replied, "Well, they found these five sacks of corn that he brought in." To this counsel also objected, and, in the reply of the court to this, reference was made to the corn as "his corn * * * these sacks of corn that they brought in." It was stated by the trial court that this was not a comment on the weight of the evidence and not intended to be. To this remark also an exception was taken as being a comment on the weight of the evidence. No charge was asked on behalf of appellant in reference to the...