Montgomery v. State

• Decision Date: 02 December 1908
• Citation: 116 S.W. 1160
• Court: Texas Court of Criminal Appeals
• Parties: MONTGOMERY v. STATE.

116 S.W. 1160

MONTGOMERY v. STATE.

Court of Criminal Appeals of Texas.

December 2, 1908.

Rehearing Denied March 17, 1909.

Appeal from District Court, Liberty County; L. B. Hightower, Judge.

H. Montgomery was convicted of burglary, and appeals. Affirmed.

Stevens & Pickett, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of burglary; his punishment being assessed at two years' confinement in the penitentiary.

It is contended that the court erred in not charging on the law applicable to circumstantial evidence. We are of opinion that this point is not well taken. The state's witness testifies positively that he went into the room known as the freight depot in the town of Liberty somewhere after 8 o'clock p. m. and found appellant in there with his shoes off; that when he (witness) went in he carried a light, and appellant rose from behind some boxes where he had squatted down; that at the point where appellant was discovered there were a couple of boxes which had been taken from the express department situated in the same room. This express department was cut off from the main room, or rather was in the corner of the main room, and segregated by a sort of lattice work a few feet in height. This express matter had been taken out of the express department. The evidence shows that the doors to this particular room had been closed. There is no question of the fact that the appellant entered the room, because he was found in the room. Had appellant been found away from the room, and outside, with the express packages which he had, and the state had relied upon that to connect him with the burglary, or breaking the house, this proposition would be presented; and it would be necessary under that theory or the condition of things to charge on circumstantial evidence, but not so where appellant was found in the room under the circumstances stated. He was there under circumstances which indicated he had entered the room for the purpose of committing theft.

It is true, to some extent, that it was a case of circumstantial evidence as to how appellant entered the room. The house was closed before he entered, and it was closed at the time the depot agent entered, and when he found appellant in the room. Appellant had been in the freight room of the depot with the porter shortly prior to the time the depot agent discovered him in the room, and there seems to have been no way for appellant to have entered the room, except through the door leading from the waiting room set apart for negroes, which was unlocked; but, when appellant and the porter came out of the room which was alleged to have been burglarized, the door was closed behind them, but not locked. There was another door to this room, but the agent testifies it could not be opened, except from the inside, and after appellant was found in the room, and the agent had gone for the officers, appellant went from the building through that door by opening it from the inside. Even if there is an element of circumstantial evidence in the case, the facts are in such "juxtaposition" to the main fact that it relieves the court of charging on circumstantial evidence under the various decisions of this court. It would seem that the state closed every avenue of entry into the building, except by an actual breaking or opening of a door, and the evidence shows that that door was closed. The case of Crowell v. State, 24 Tex. App. 404, 6 S. W. 318, cited by appellant is not in point. That was a case of theft, where the state relied upon circumstances to connect appellant with the original taking.

Appellant excepts to the following portion of the court's charge: "To constitute burglary, where the indictment (as in this case) does not in specific terms allege that the offense was committed either in the day time or `not' time, the evidence must show to the satisfaction of the jury beyond reasonable doubt that the entry was effected by breaking." The objection is that it was on the weight of the evidence, and assumes that there was an entry, and only leaves it with the jury to ascertain the fact that a breaking occurred, and withdraws from the jury the fact that they must determine whether or not there was an entry. We do not believe there is any merit in this contention. The charge given by the court is as follows: "To constitute burglary, where the indictment (as in this case) does not in specific terms allege that the offense was committed either in the day time or not time, the evidence must show to the satisfaction of the...