Johnson v. State

• Decision Date: 15 March 1922
• Docket Number: (No. 6783.)
• Citation: 238 S.W. 933
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

238 S.W. 933

JOHNSON v. STATE.

(No. 6783.)

Court of Criminal Appeals of Texas.

March 15, 1922.

Appeal from District Court, Fannin County; Ben H. Denton, Judge.

Zollie Johnson was convicted of burglary, and he appeals. Affirmed.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for burglary. Punishment was assessed at two years' confinement in the penitentiary.

On the night of July 13, 1921, a smokehouse belonging to Mrs. Elizabeth Hawley was burglarized, and about 100 pounds of meat, consisting of three sides and two jowls, were stolen. The meat had been hung with strips torn off a gingham apron, and when recovered was fully identified by the owner by these gingham strips. The burglary and theft was discovered early the next morning, and Officer R. B. Fisher was called to Mrs. Hawley's to make an investigation. The officer testified that he noticed some peculiar tracks around the smokehouse and also in a cotton patch, where the tracks appeared to be coming toward the smokehouse and also leaving it. These tracks were described as peculiar in that the left foot had a shoe so worn that three toes stuck out over the edge of the sole and would show every time a step was made. These tracks leaving the smokehouse were followed by the officer across several fields where the ground had been freshly plowed. The tracks were not discernible when crossing a road, but would be picked up on the other side, and were going in a southeasterly direction. They were followed to within about half a mile of appellant's house, where they went into a hard road and could not be followed further. Fisher went to appellant's house and found him at work in the cotton patch. A shoe on appellant's foot corresponded to the one which had apparently made the tracks with three toes sticking out over the outside of the sole of the shoe. Appellant was taken by the officer back to where the burglary occurred, and he was caused to make some tracks in soft soil. The officer testified that it was exactly the same track; at least his foot fit the other track. At this point the officer suggested that they go down on the branch and try the tracks there, to which appellant replied that "there was no use to do that; that he might as well go on to town; that he had the right negro," and told the officer in this connection that the meat was hidden under the floor of his (appellant's) smokehouse. After this information was given by appellant the officer went with a son of Mrs. Hawley, and under the floor of appellant's smokehouse found all of the meat which had been stolen.

During the progress of the trial appellant made many objections to the testimony of the officer. Bills of exception Nos. 1 and 2 are to the officer's testifying as to any tracks at all about the smokehouse, and further as to his description of the tracks because it had not been shown that appellant had any connection therewith. When this objection was made, the attorney representing the state assured the court that the connection would be shown, whereupon the court overruled the objection. That the connection of appellant with the tracks was shown is obvious from the facts in evidence heretofore recited as well as from the qualifications of the judge to the bills of exception. Further objection was made to the testimony of the officer as to placing appellant's feet in the tracks found near the smokehouse and also causing him to make tracks near them for the purpose of comparison; the objection being that it was against the will and without the consent of the appellant. It will be observed in connection with this bill that the evidence fails to show that appellant objected in any way to making the tracks for the purpose of comparison, and, even if he had done so, the...