Malazzo v. State, 29260
| Citation | 165 Tex.Crim. 441,308 S.W.2d 29 |
| Decision Date | 13 November 1957 |
| Docket Number | No. 29260,29260 |
| Parties | John Joseph MALAZZO, Jr., Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Baldwin & Goodwin, Beaumont, for appellant.
Leon B. Douglas, State's Atty., Austin, for the State.
The offense is burglary; the punishment, two years.
The indictment alleged that appellant did unlawfully by force, threats and fraud break into and enter a house occupied and controlled by Frank D. Manchac, with intent to commit theft; and further alleged, in the same count, that appellant fraudulently took from said house and from the possession of Frank D. Manchac one television set 'of a value in excess of $25,' the corporeal personal property of Frank D. Manchac, without his consent, with intent to deprive him of the value thereof and to appropriate the same to the use and benefit of him, the said John Joseph Malazzo, Jr.
While not alleging burglary in the customary form, the indictment appears to be sufficient. Williams v. State, 24 Tex.App. 69, 5 S.W. 838; Bigham v. State, 31 Tex.Cr.App. 244, 20 S.W. 577; Coates v. State, 31 Tex.Cr.App. 257, 20 S.W. 585.
The breaking and entry of the house and the fact that the television was missing was established by the witness Manchac.
A principal complaint on the appeal is that Manchac was permitted to testify over objection that he had seen the sales slip showing that the television cost some three hundred dollars, and that save for this hearsay testimony there was no proof to sustain the allegation that the television set was of a value in excess of $25.
Appellant cites and relies upon McClure v. State, Tex.Cr.App., 296 S.W.2d 263, and other authorities which hold that unnecessary allegations descriptive of the identity of the offense charged must be proved as alleged.
The allegation that the television was of a value in excess of $25 was unnecessary. It in no way affected the punishment for either burglary or theft. It was pure surplusage, and could be disregarded as such.
When not descriptive of that which is legally essential to the validity of the indictment unnecessary words may be rejected as surplusage. Hammons v. State, 29 Tex.App. 445, 16 S.W. 99.
Where the value of property alleged to have been stolen does not determine whether the offense is a felony or a misdemeanor, nor control the punishment applicable to the theft, the allegation as to its value is not descriptive of the offense and need not be proven. Davis v. State, 40 Tex. 135; Hart v. State, 14 Tex.App. 657; Houston v. State, 98 Tex.Cr.R. 280, 265 S.W. 585; Johnson v. State, 126 Tex.Cr.R. 466, 72 S.W.2d 288; Byrd v. State, 90 Tex.Cr.R. 418, 235 S.W. 891.
Gondron, an accomplice witness, testified that he went to the house in question in company with appellant and his wife; that they planned to steal the television which appellant said was there; that appellant's wife entered the house with him, and they removed the television set; that appellant and his wife accompanied him to Port Arthur; that after they left him he sold the television set for $100, the agreement being that appellant was to get part of the money.
The trial court permitted the State to reopen and to call the County Attorney as a witness, and he testified that after appellant had made bond, he came to his office, accompanied by his wife, and there made the statement that he was involved in the burglary; that he went in the house and helped move the television, load it in the car and carry it away, but that his wife was innocent.
We find no abuse of discretion on the part of the trial judge in permitting the State to reopen and offer further testimony before the charge was read to the jury. Art. 643, Vernon's Ann.C.C.P.; McClellan v. State, 118 Tex.Cr.R. 473, 40 S.W.2d 87.
Nor do we find error in the admission of the oral confession to the County Attorney, the facts showing that the defendant was not under arrest at the time. Kirk v. State, 56 Tex.Cr.R. 429, 120 S.W. 436; Wilson v. State, 136 Tex.Cr.R. 590, 126 S.W.2d 977; Dreyer v. State, 11 Tex.App. 631.
We find the evidence sufficient to sustain the...
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Eastep v. State
...against the defendant, and without detriment to the indictment, are treated as surplusage. For example, in Malazzo v. State, 165 Tex.Crim. 441, 308 S.W.2d 29, 31 (App.1957), we held: Where the value of property alleged to have been stolen does not determine whether the offense is a felony o......
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...of property, value must be alleged and proved as the value determines the grade of the offense and the punishment. See Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29. The Legislature has not seen fit to make the theft of a motorcycle a felony without regard to its value, and a prosecuti......
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Burrell v. State
...unnecessary words may be rejected as surplusage.' See also Cohen v. State, 479 S.W.2d 950 (Tex.Cr.App.1972); Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29 (1957). There is, however, a well recognized exception to the general rule discussed above, and that is where the unnecessary matte......
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