Matthews v. State

• Decision Date: 09 December 1896
• Citation: 38 S.W. 172
• Parties: MATTHEWS v. STATE.
• Court: Texas Court of Criminal Appeals

38 S.W. 172

MATTHEWS v. STATE.

Court of Criminal Appeals of Texas.

December 9, 1896.

Appeal from district court, Bexar county; Robert B. Green, Judge.

Lee Matthews was convicted of burglary, and appeals. Affirmed.

W. H. Brooker, for appellant. Mann Trice, for the State.

DAVIDSON, J.

Appellant was convicted of burglary, and prosecutes this appeal.

1. During the argument of the district attorney, the bill of exception recites that he said to the jury that "a man who will commit burglary and theft will commit murder, and you should give the full penalty of the law." Defendant objected to this remark of the district attorney. Remarks of this sort should not be indulged in by the prosecution, yet we see no such abuse of his right, as attorney, in discussing the matter before the jury as would require a reversal of the judgment, especially as the appellant failed to ask any instructions to be given to the jury in regard to said argument. It has been repeatedly held by this court that, in matters of this sort, in order to avail the defendant, he should ask a charge to be given the jury requiring them to disregard such statements.

2. The defendant asked the court to instruct the jury that, if he entered the house for any other purpose than to commit theft, and he formed the intent to steal after entering the house, the offense of burglary was not made out, and he should be acquitted; and that, before they could convict the defendant, they must believe, beyond a reasonable doubt, that the entry was made with the specific intent to steal, and for no other purpose; and, if the defendant made an entry of the house through an open door, and after such entry conceived the intent to steal, he would not be guilty of burglary. This charge was refused, and, we think, correctly, under the facts of this case. The defendant entered the house by opening the door. There is some question, under the evidence in this case, as to whether he unlocked the door at the time of entry, or whether he simply pushed it open. The door was closed, and he did open it by applying force to it. Under this state of case, it would be wholly immaterial whether the door was locked or unlocked. See Sparks v. State, 34 Tex. Cr. R. 86, 29 S. W. 264; Dennis v. People, 27 Mich. 151; Timmons v. State, 34 Ohio St. 426. With reference to the intent with which he entered the house, the testimony is beyond all question that it was for the purpose, alone, of taking the property from the room in...