Howell v. State

• Decision Date: 05 October 1927
• Docket Number: (No. 11021.)
• Citation: 2 S.W.2d 861
• Parties: HOWELL v. STATE.
• Court: Texas Court of Criminal Appeals

2 S.W.2d 861

HOWELL v. STATE.

(No. 11021.)

Court of Criminal Appeals of Texas.

October 5, 1927.

Rehearing Granted February 15, 1928.

Appeal from Criminal District Court, Tarrant County; Geo. E. Hosey, Judge.

L. B. Howell was convicted of burglary, and he appeals. Reversed and remanded.

Harry Myers and McLean, Scott & Sayers, all of Fort Worth, for appellant.

Sam D. Stinson, State's Atty., and Robt. M. Lyles, Asst. State's Atty., both of Austin, for the State.

MORROW, P. J.

The offense is burglary; punishment fixed at confinement in the penitentiary for a period of two years.

J. F. Garrison owned a camp house on the shore of Lake Worth. It was kept closed and locked, but was used by Garrison for weekend vacations. While it was owned and possessed by him it was entered by force by some one, in November. A number of articles were stolen. Part of the property, namely, the rug and floor pillows, were obtained from the abode of the appellant and were produced in court and identified by Garrison.

Appellant testified in his own behalf and disclaimed any connection with the burglary. He testified and introduced other testimony upon the subject of alibi. He denied that he had ever told Mrs. Massey that he had stolen the blanket.

There are three bills of exceptions. From the first bill it appears that on his direct examination the appellant testified that the blanket and pillow were first seen by him at his mother's house on the bed upon which he slept, he and his wife at that time residing with his mother. Appellant sought to testify that upon observing the blanket and pillow he asked his wife about them and that she told him "that she got them from a man, and that she came into possession of them by lawful means." According to the state's testimony, the blanket and pillow were, at the request of Mrs. Hattie Massey (mother of the appellant's wife), moved from the home of the appellant's mother to that of the witness. Prior to the date of the removal mentioned, appellant and his wife had been living at the home of the appellant's mother. The witness testified that on the night after the articles were brought to her house, appellant told her that he got the blanket mentioned for his wife. Nadene Massey, the young sister of the appellant's wife, testified that she heard a conversation between her mother, the appellant, and his wife, in which the appellant said: "How do you like the blanket I got for Thelma?" Her mother replied: "It is all right; where did you get it?" Appellant said: "I stole it out of a camp at Lake Worth."

It is to be observed that the state does not rely upon the circumstance of recent possession of stolen property alone, nor is the proffered testimony a declaration explaining the possession of recently stolen property made at the time the right to the possession was challenged. The proffered testimony seems more properly classified as an effort upon the part of the appellant to prove a hearsay declaration of the wife explanatory of her possession of the property. The rule permitting proof of a declaration of the possession of stolen property relates to an explanation made when the right is first challenged. Cleveland v. State, 57 Tex. Cr. R. 356, 123 S. W. 142; and other authorities in Branch's Ann. Tex. P. C. § 2465, subd. 13; also, Cameron v. State, 44 Tex. 652, and cases cited in Branch's Ann. Tex. P. C. § 2464, subd. 5. That the offered testimony was a declaration of the wife coincident with the appellant's first knowledge of her possession of the property rests upon his testimony alone. If, in fact, he had no previous knowledge of the burglary, he was not guilty of the offense, and the fact that his wife may have made an explanation of her possession of it would have added nothing to his defense. It is believed, however, that the alleged declaration was properly excluded under the rule against hearsay.

It appears from Bill No. 2 that the appellant's wife was charged with burglary in connection with the same transaction as that upon which her husband was convicted. Upon her trial there was a verdict of guilty and the sentence suspended upon the recommendation of the jury. By article 711, C. C. P. 1925, coindictees of the same offense are not available to each other as witnesses unless the prosecution against one of them is terminated by acquittal or dismissal. Until the prosecution is dismissed, one under a suspended sentence is not a competent witness for his coindictees. See Majors v. State, 100 Tex. Cr. R. 304, 273 S. W. 267; Watts v. State, 75 Tex. Cr. R. 330, 171 S. W. 202; Sunday v. State, 77 Tex. Cr. R. 26, 177 S. W. 97.

It appears from bill No. 3 that the state, over the objection of the appellant, proved the value of the stolen property to have been $75. This being a case of burglary in which the value of the stolen articles was not material, the proof mentioned was unnecessary, but we fail to perceive in what respect it could have injured the accused.

We do not concur in the appellant's view that it was incumbent upon the court to instruct the jury upon the law of circumstantial evidence. It is believed that the confessions of the appellant which were proved were sufficient to classify the case as one not depending upon circumstantial evidence alone.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

A vigorous assault is made upon our holding it not error to refuse to charge on circumstantial evidence. The complaint was brought forward in bill of exceptions No. 4. Upon more careful examination and reflection we have concluded that we were in error in this particular.

The offense charged was burglary. We based our holding that this was not a case of circumstantial evidence upon the proposition that the state did not rely alone upon the circumstance of recent possession...