Johnson v. State, 23611.
| Decision Date | 04 March 1947 |
| Docket Number | No. 23611.,23611. |
| Citation | 199 S.W.2d 1021 |
| Parties | JOHNSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Jefferson County; Owen M. Lord, Judge.
Wesley Johnson was convicted of burglary of a private residence at night, and he appeals.
Judgment affirmed.
Wyatt J. Baldwin, of Beaumont, for appellant.
Ernest S. Goens, State's Atty., of Austin, for the State.
Conviction is for burglary of a private residence at night; punishment assessed at five years in the penitentiary.
The indictment contained two counts; the first charged burglary at night of the private residence of Mrs. Sarah Grado, the second charged burglary of the house of Mrs. Sarah Grado. The court submitted the case to the jury upon the first count only.
The evidence shows that Mrs. Grado operated a store with sleeping rooms for the family over the store. On the night of the burglary the family were downstairs. Some one heard a noise in the sleeping rooms above. They went up to investigate and found appellant, a negro man, under one of the beds. He was taken downstairs and detained until an officer was summoned to whom appellant was turned over.
It was discovered that a screen to one of the upstairs windows opening into the sleeping room had been removed. Appellant's confession was put in evidence, in which confession he said he gained access to the window from the roof of some outhouses, removed the screen and went into the room looking for money.
Appellant's defense was insanity. This issue was submitted to the jury who found against him. No objections were urged to the charge of the court.
The court did not submit the question of a suspended sentence, presumably for the very good reason that a suspended sentence is not available upon conviction for burglary of a private residence at night. Art. 776, C.C.P.
The only complaint is presented by bill of exception No. 2 which reveals the following The charge to the jury did not contain the forms of verdict. However, when the jury retired the clerk handed them forms of verdict, one of which was for the recommendation of a suspended sentence. The clerk was inexperienced, having only been clerk for about two weeks. The court did not tell him to give the suspended sentence form to the jury, and the clerk testified that he gave it to the jury through error. Upon hearing of the motion for new trial the further facts were developed that the jury discussed the question of suspending appellant's sentence, and they seemed to be favorable to it, but no vote was taken on it. Some member of the jury questioned whether they could do so, and said they shouldn't have that form. Whereupon they came into court to ask the judge about it. Upon discovering the facts the court withdrew from the jury...
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