Jackson v. State

• Decision Date: 15 February 1890
• Citation: 13 S.W. 451
• Parties: JACKSON <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 451

13 S.W. 451

JACKSONv.

STATE.

Court of Appeals of Texas.

February 15, 1890.

Appeal from district court, Parker county; J. W. PATTERSON, Judge.

James Jackson appeals from a conviction of burglary.

J. M. Richards and G. A. McCall, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

This is the second appeal in this case. On the former appeal the judgment was reversed and the cause remanded on account of certain defects in the charge of the court, which were pointed out. Jackson's Case, 12 S. W. Rep. 701. On the second trial the learned judge corrected his charge in these particulars; and, though several objections are again strenuously urged to the charge, we will, without discussing them, say that, in our opinion, they are not well taken, and that the charge, as now presented, is a sufficient exposition of the law applicable to the facts. But one special instruction was asked by the defendant in addition to the general charge, and it was given.

Appellant has been tried for and convicted of burglary. A strong criminative fact against him was the finding in his house, a few days after the burglary, of one of the seamless sacks identified by the state's witnesses as one of the sacks containing the wheat stolen from the burglarized house. The burglary was committed on the night of August 20th, and the sack was found in defendant's house on August 28th following, or seven days thereafter. At the time it was found the defendant had been arrested, and was in jail. He has never attempted to explain his possession of the sack. His wife stated that it was his, (defendant's;) that he had had it for several months, and that he had brought it home filled with peaches from Edwards' place, while he was working at Edwards'. Had this been the only criminative or inculpatory fact against the defendant, there might have been some question as to the sufficiency of the evidence to support a conviction for burglary. "Mere possession of stolen goods, without other evidence of guilt, is not to be regarded as prima facie evidence of the burglary. But, where goods have been feloniously taken by means of a burglary, and they are immediately, or soon after, found in the actual and exclusive possession of a person who gives a false account, or refuses to give any account, of the manner in which the goods came into his possession, proof of such possession and guilty conduct may sustain the inference not only that he stole the goods, but that he made use of the means by which access to them was obtained. There should be some evidence of guilty conduct besides the bare possession of stolen property before the presumption of burglary is superadded to that of larceny." Whart. Crim. Law, (8th Ed.) § 813; Whart. Crim. Ev., (9th Ed.) § 763; 2 Amer. & Eng. Cyclop. Law, 694. In Georgia, and perhaps in some of the other states, it is held that recent possession by a person who is unable to account for his possession raises a presumption of guilt, and would authorize the jury to find a verdict of guilty. Lundy v. State, 71 Ga. 360. With us the rule is the same as in theft; that is, that, to warrant an inference of guilt of theft from the circumstance of possession of recently stolen property, such possession must be personal and exclusive, must be unexplained, and must involve a distinct and conscious assertion of property by the defendant. Field's Case, 24 Tex. App. 422, 6 S. W. Rep. 200; Morgan's Case, 25 Tex. App. 513, 8 S. W. Rep. 487; Jackson's Case, supra. And this seems to be the rule in Alabama. White v. State, 72 Ala. 195.

In this case defendant did not explain, nor attempt to explain, his possession, though his wife did, or attempted to do, so for him. What are the other inculpatory and criminative facts? One Kilby, a brother-in-law of defendant, was implicated in the burglary; and the evidence of Kilby's guilt, as shown by the record, is, to our minds, overwhelming. Defendant was staying at Kilby's house. He had previously worked at Edwards' place during the harvest, and knew the premises. At sundown on the evening of August 20th he was seen in an empty two-horse wagon, with Kilby, going in the direction of Edwards'. The next morning, at sunrise, Kilby and another party are at the mill, where Kilby sells the stolen wheat, and takes in part pay a 100-pound sack of flour. The purchaser does not know or identify defendant as the man who was with Kilby; but several witnesses met Kilby and Jackson (this defendant) as they were returning from Weatherford, between 9 and 10 o'clock A. M., after the sale of the wheat, in a two-horse wagon, and one testifies that he saw the sack of flour in the wagon, and that Kilby told him they were going to have biscuits, and asked him to come over and see him. These witnesses knew Jackson, (this defendant,) and identified him as the party with Kilby. In addition to these facts, one of the seamless sacks which contained a part of the wheat stolen from the burglarized house was, as we have seen, found at defendant's house. This sack was fully and completely identified by the alleged owners, and other witnesses for the state. We think the evidence amply sufficient to show a conspiracy and acting together as principals by Kilby and defendant in the criminal enterprise, and to warrant the inference that defendant was a party to, and guilty of, the burglary.

But it is insisted that the court erred in allowing evidence to go to the jury of the finding of the sack, and what...