Moore v. State

• Decision Date: 18 May 1910
• Citation: 128 S.W. 1115
• Parties: MOORE v. STATE.
• Court: Texas Court of Criminal Appeals

128 S.W. 1115

MOORE v. STATE.

Court of Criminal Appeals of Texas.

May 18, 1910.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

Burl Moore was convicted of burglary, and he appeals. Reversed and remanded.

Taylor & Gallagher, for appellant. John A. Mobley, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of burglary of a house occupied by R. G. Wendland. The evidence shows that appellant was found in a room in the Metropole hotel about 11:30 o'clock at night. Wendland testified that he went to the room, unlocked it, went in, and found appellant. Appellant informed Wendland at the time that he found the door open and walked in. Wendland asked him what he was doing in there, and he said, "Nothing," and he told him to get out, and asked him why he was in the room, and appellant replied that he thought there was some whisky in there. There had been some property removed from the refrigerator—butter, dressed chicken, and bacon. Appellant was secreted at the time Wendland found him. Appellant's testimony is to the effect: That he was passing through the hotel, going to the toilet of the servants, and found the door open and entered. When he entered, he did it for the purpose of seeing who was in there, thinking the engineer was in the room. That the engineer stayed around late sometimes, fixing things which Mr. Wendland had employed him to look after. That the door was open at the time. Just after stepping in the room, he must have touched the door, causing it to close. Anyway, he says it did close, leaving him in the room. He denied using the ladder as a means of entry through a window, and knew nothing of the ladder that night. That, when Wendland came and turned the light on, it frightened him, and he ran under a desk. That he did not want Mr. Wendland to see him in the room. The door was fastened with a Yale lock.

The theory of the state was that appellant entered through the top sash of a window by placing a ladder against the wall and letting the window down from the top, gaining entrance by passing through the opening thus made. The evidence is that, if the top section of the window was fastened by the latch it could not be opened, unless the light was broken so that the arm could be inserted and turn the latch. It is evident from the testimony, if appellant made his entry through the open window, it was not latched, for the glass was not broken, nor was the window sash down. It was up and in place. Wendland further testified that he keeps an agent in charge of the storeroom, who receives the goods when brought; that this agent has general supervision of everything in the room as his agent and employé. Herbert was the name of the party. It was his business to take things in and out of that room, and to close and open the door. McCutchen also testified that Herbert had charge of the room in the manner indicated during the daytime, and it was his business to close it at night. This is a sufficient statement to review the questions raised.

1. We are of opinion that ownership, occupancy, and control of this room was properly alleged in Wendland, the proprietor of the hotel. He had general control of the entire hotel and employés. Herbert was his employé, under his supervision and control and only had such possession of this room as was indicated by his employment. We are cited to the cases of Lamater v. State, 38 Tex. Cr. R. 249, 42 S. W. 304, and Mays v. State, 50 Tex. Cr. R. 391, 97 S. W. 703. These cases are not in point. One of the cases shows that the alleged owner was janitor of a public building, and had entire control of it during the night after the school had adjourned until the next day. That burglary was at night. The ownership of the building was properly alleged in the janitor, for he had the management of the building at the closing of the school in the evening until school convened the next day. In this case Herbert's control of the room was as a servant, under the supervision of the landlord and party in control of the building. The possession of Wendland, under the circumstances of this case, was superior to that of Herbert; Herbert being only the employé, agent, or servant. In the cases of Bailey v. State, 18 Tex. App. 426, and Frazier v. State, 18 Tex. App. 434, the question of ownership is fully discussed. Under those authorities Herbert was but a servant and employé under the immediate control and management of Wendland, and did not have that separate control and management which is required to constitute him the legal occupant or owner of the room. Ownership, under the facts, was in Wendland.

2. Another error is urged for reversal in reference to the charge of the court. That portion of the charge is as follows: "If you believe from the evidence that the defendant did enter the house of R. G. Wendland in the nighttime through an open door, without having applied any force to open the same— that is, that the defendant applied no force to open said door, such as lifting a...