Jones v. State

• Decision Date: 20 April 1904
• Citation: 80 S.W. 530
• Parties: JONES v. STATE.
• Court: Texas Court of Criminal Appeals

80 S.W. 530

JONES v. STATE.

Court of Criminal Appeals of Texas.

April 20, 1904.

Appeal from District Court, Galveston County; J. K. P. Gillaspie, Judge.

Zack Jones was convicted of burglary, and appeals. Reversed.

R. H. & Alice S. Tiernan and John Grothgar, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years. The indictment alleges that the house burglarized was the property of A. Bernadoni, and that the property therein intended to be taken was that of A. Bernadoni. The proof showed that Reale A. Bernadoni was the husband of A. Bernadoni, and that the house was a grocery store, with sleeping apartments connected; that the particular locus in quo was the sleeping apartment where Bernadoni and his wife slept. It appears the issue was made on the trial that there was a variance as to the ownership of the property between the indictment and proof. The court, in order to settle this controversy, instructed the jury to the effect: "In law the home of persons married and living together is deemed to be in the control of either, and an allegation that it is occupied and controlled by the wife is sufficient." We do not understand this to be the rule of law. The only contingency pointed out by our statute with reference to ownership in a married woman is in article 445, Code Cr. Proc. 1895, which provides: "Where it is the separate property of a married woman, the ownership may be alleged to be in her or in her husband." There is also a provision with reference to joint ownership of property in the same article, which provides, where the property is owned in common or jointly by two or more persons, the ownership may be alleged in all or either of them. But this has no application to the community property of husband and wife. Under the law in such case he has the control and management of said property, and is to all intents and purposes the owner; the wife having a community interest, subject to his absolute control and management. Except in the contingency pointed out above with reference to an allegation of ownership in a married woman, we know of no rule which would authorize the ownership of property to be charged in her, except where the husband may have abandoned her. Ware v. State, 2 Tex. App. 547. We hold there was a variance between the indictment and the evidence, and that the charge of the...