Love v. State

Decision Date19 December 1917
Docket Number(No. 4765.)
Citation199 S.W. 623
PartiesLOVE v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Midland County; Chas. Gibbs, Judge.

Ed Love was convicted of burglary, and he appeals. Judgment affirmed.

Wright & Harris, of San Angelo, and H. A. Leaverton, of Midland, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

From a conviction of burglary with the lowest punishment assessed, this appeal is prosecuted.

The uncontradicted testimony shows that on the night of January 15, 1917, the storehouse of Mr. Rohlfing, in Midland, was broken into. The glass in the door was broken, the Yale lock from the inside then turned, and the door opened. Whoever broke the glass cut his hand. Blood was found on the doorlock on the inside and drops of blood on the floor from there down into the store to the safe, and about the safe, and then back from there to the door and on the outside.

The store door was discovered standing open the next morning about, or just before, daylight. Mr. Rohlfing was phoned for, and as soon as he could go down he discovered that the glass of his door had been broken and entrance effected that way, and the drops of blood found in the store back and forth as indicated. These drops of blood in the store and about the safe were proven by witnesses who at the time examined them. The officers then tracked this blood from the store door outside, telling the route, until they came to the room in a negro boarding house where they found appellant. They found that the thumb on his left hand had been recently cut, was still bleeding, and they also found blood on various articles in the room where they found him. It had snowed a day or two before this. They found tracks from the store door around in the snow and on the ground around where these drops of blood appeared clear to the house where they found appellant. They took his shoes off, measured them in the tracks, and they fitted exactly. No other tracks than these were found at the locations indicated except appellant's, when they were first traced. There can be no sort of doubt from the uncontradicted testimony that appellant is the person who broke the glass out of the store door and entered the store. The evidence would exclude the idea that it was any other than appellant.

The store of Mr. Rohlfing was a racket store. He testified, in substance, that when he first went down and found that his store had been broken into he looked to see if any of his goods were missing, and that he failed to discover that any of them were missing.

The indictment alleged that said house was broken into and entered with the intent by appellant to steal. He contends that because the evidence fails to show he stole anything, when he had the opportunity, that the evidence is insufficient to show that he committed a burglary, and that the court erred in submitting the case to the jury authorizing his conviction for burglary. Whether or not his intention was to steal at the time he broke and entered the house is a question of fact to be solved by the jury from the circumstances and from all the testimony. The law on the subject is well settled against appellant's contention. Franco v. State, 42 Tex. 276; Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; Mullens v. State, 35 Tex. Cr. R. 149, 32 S. W. 691; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Moore v. State, 52 Tex. Cr. R. 364, 107 S. W. 355; Williams v. State, 65 Tex. Cr. R. 86, 143 S. W. 634; Black v. State, 73 Tex. Cr. R. 476, 165 S. W. 571; and other cases.

This court, by Judge Davidson, in the Alexander Case, supra, held:

"The intent with which the defendant entered the house is a fact for the jury, to be gathered from the circumstances attending the entry, and prior and subsequent thereto. The Supreme Court of California, in a case similar to the one in hand, said: `Though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances. The weight to be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of the night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under such circumstances.' People v. Soto, 53 Cal. 415; Painter v. State, 26 Tex. App. 454 ; Steadman v. State , 8 S. E. 420; 11 Crim. Law Mag. 410; 2 Archb. Crim. Prac. & Pl. p. 1107. Mr. Archbold says: `Even the very fact of breaking and entering in the nighttime raises the presumption that it is done with the intent of stealing.'"

This holding was repeated by Judge Davidson in the said Mullens Case, supra.

In the Smith Case, supra, the same contention in effect was made as in this case. This court, through Judge Henderson, therein held:

"The facts on this point are meager. The prosecutor says he kept no valuables in his room, only his clothing, bedding, and furniture; that he also kept a six-shooter in his room, which, immediately after the burglary, he discovered was gone, but he testified that this pistol may have been taken before that night, as he did not remember to have seen it for some days prior to the burglary. What other purpose than to steal appellant had in going into the room is not suggested by any evidence, and under the authorities as we understand them the evidence of an intent to steal in a burglary case may be slight. See Burke v. State, 5 Tex. App. 74; Alexander v. State, 31 Tex. Cr. R. 362 ; and Mullens v. State, 35 Tex. Cr. R. 149 . In this case, though evidence of the specific intent to steal was slight, yet we believe, under the authorities, it was sufficient."

This court again in the Moore Case, supra, in an opinion by Judge Ramsey, discussed this question, and held:

"We must, in a case like this, have some respect for the verdict of the jury. They are essentially the arbiters under certain restrictions of all questions of fact; both their integrity and intelligence are vouched for by their selection, without objection by both counsel for the state and the defendant. Again, the verdict has received the approval of the judge of the court trying the case; he had the opportunity of seeing the witnesses, and had better opportunities than we have to judge in the first instance, both in respect to their credibility and the weight to be given to their testimony. He is something more than a mere disinterested moderator of a forensic contest. By law he is charged with the responsibility of deciding on the sufficiency of the evidence which the jury has acted on to support their verdict. Yielding the respect which the law requires to the verdict of the jury and the action of the court, we hold against the contention of appellant that the verdict is unsupported, in that there was not sufficient evidence of an intent to commit theft, but that, judged in the light of all the circumstances, the verdict of the jury is supported by the evidence. Alexander v. State, 31 Tex. Cr. R. 359 ; Painter v. State, 26 Tex. App. 454 ; People v. Soto, 53 Cal. 415."

The evidence herein, as stated, without doubt, shows an unlawful breaking and entry by appellant. As held in the cases above cited, no other reasonable deduction can be drawn than that he entered it at the time for the purpose to steal. No other purpose than this is indicated or suggested by the...

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