McNew v. State

• Decision Date: 13 November 1918
• Docket Number: (No. 5038.)
• Citation: 208 S.W. 528
• Parties: McNEW v. STATE.
• Court: Texas Court of Criminal Appeals

208 S.W. 528

McNEW v. STATE.

(No. 5038.)

Court of Criminal Appeals of Texas.

November 13, 1918.

On Motion for Rehearing February 12, 1919.

Appeal from District Court, Dawson County; W. R. Spencer, Judge.

Frank McNew was convicted of burglary, and appeals. Affirmed.

Gordon B. McGuire and V. O. Key, both of Lamesa, for appellant.

E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of burglary with the lowest punishment assessed.

The indictment averred that —

On or about February 10, 1918, appellant "did then and there unlawfully and by force, threats and fraud break and enter a house there situate and owned by C. Still, without the consent of the said C. Still, and with the intent then and there to fraudulently take from the said house corporeal personal property therein being and belonging to the said C. Still, from the possession of the said C. Still, without his consent and with the intent to deprive the said C. Still, the owner, of said corporeal personal property, of the value of the same, and to appropriate the same to the use and benefit of him, the said Frank McNew."

Appellant was arrested and placed in jail March 21st. On that date the clerk issued the proper writ commanding the sheriff to serve him with a copy of said indictment, a properly certified copy thereof being duly attached to the writ and which was on that date served upon him. The copy served was a literal copy of the indictment, except that the word "corporeal" first used in that part of the indictment copied above was spelled "corporal," evidently by mistake omitting the letter "e" in the latter part of said word. When the case was called for trial on March 26th, appellant made a motion setting up that he had not been served with a copy of said indictment and asking that he be duly served and that the case be postponed for that purpose. The court correctly overruled his motion. The omission of the letter "e" in the word stated was wholly immaterial and was completely corrected by the balance of the indictment. No possible injury could have occurred to appellant by reason of the omission of said "e" in copying said word in the indictment. Johnson v. State, 4 Tex. App. 268; Barrett v. State, 9 Tex. App. 33; Hargrove v. State, 51 S. W. 1124; Luster v. State, 63 Tex. Cr. R. 541, 141 S. W. 209, Ann. Cas. 1913D, 1089; Somerville v. State, 6 Tex. App. 438; Hudson v. State, 10 Tex. App. 227, 228, and cases therein cited; Bailey v. State, 63 Tex. Cr. R. 586, 141 S. W. 224; Reyes v. State, 196 S. W. 532.

The uncontradicted proof shows that the burglary occurred at night. The house burglarized was not a private residence. The indictment alleging that appellant did "break and enter," and not alleging whether it was a daytime or a nighttime burglary, under the authorities clearly charged a nighttime burglary, and the court in trying the case and in his charge so treated the case. Appellant's theory, it seems, was that, the indictment not charging specifically a nighttime burglary by alleging that it occurred at night, the indictment alleged only a daytime burglary, and on his theory, which was incorrect, he made objections to the court's charge which were untenable. The authorities are uniform and many that the indictment herein clearly embraced a nighttime burglary and the court correctly tried the case on that theory. See cases collated in 2 Branch's An. P. C. § 2327. It is therefore unnecessary to take up appellant's objections to the court's charge based on his theory of what the indictment charged.

The alleged owner, C. Still, whose testimony was not disputed, testified in substance that he was the owner by being in charge and control of the alleged burglarized house, and that he had feed, maize stored therein; that he kept the door locked; that the barn looked like it was entered by the door first. The lock was broken off, staples pulled out, and then two planks were torn off the north side of the barn.

G. R. Brown testified, in substance, that appellant, Bud Wright, and Sam Brown together went from his father's to said barn about a mile distant about 10 o'clock at night, going on their horses; that he, himself, that night went from his father's afoot and got within about 75 or 100 yards of the barn; and that the said three persons entered the barn and took therefrom the maize. Nothing in his testimony or that of any other witness shows, or tends to show, that he was in any way a party to the crime or in any way participated with the parties who did commit the offense.

J. S. or Sam Brown testified that he, appellant, and said Wright together went to said barn that night and took the maize out in cotton sacks on horseback.

Appellant denied the whole transaction and said he knew nothing about it except what he had heard.

The court gave a proper charge telling the jury that said J. S. or Sam Brown was an accomplice and properly required the corroboration of his testimony. Appellant asked him if he (the witness) had not told Walter Long of Howard county and W. O. Cline that he himself (the witness) had committed this burglary and stole said maize and that appellant had nothing to do with it. He denied he told these witnesses any such thing. Appellant sought a continuance in order to get these witnesses to dispute Sam Brown on this point. The court overruled his motions, and in qualification of the bills stated that the absent witnesses' testimony would have been for the purpose of impeachment only. Appellant accepted these bills with this qualification and is bound thereby. Whether said testimony would have had the effect to impeach only may not be correct. His motions show that neither of these witnesses had been subpœnaed and that they lived in other counties. No subpœna was issued until just the day before the case was tried, and one of them on the day the case was tried, though he sets up reasons for this. The court committed no reversible error in overruling the motion for a continuance.

His only other bill is very meager and complains that in the argument of the district attorney he turned and pointed to the defendant and remarked:

"Gentlemen, I want you to look at that. If it does not bear all the earmarks of a thief, then I wouldn't know it if I should see it."

To which appellant excepted, etc. The court in approving the bill qualified it by stating that appellant's attorneys in their argument had asked the jury to consider the appearance and demeanor of the defendant, and the state's witness said Brown; that the defendant had the...