Murray v. State, 19986.

• Decision Date: 07 December 1938
• Docket Number: No. 19986.,19986.
• Citation: 122 S.W.2d 1119
• Parties: MURRAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1119

122 S.W.2d 1119

MURRAY v. STATE.

No. 19986.

Court of Criminal Appeals of Texas.

December 7, 1938.

Rehearing Denied January 11, 1939.

Commissioners' Decision.

Appeal from Criminal District Court No. 2, Dallas County; Henry King, Judge.

Winburn N. Murray was convicted of burglary, and he appeals.

Affirmed.

Jack Acrey, of Dallas, for appellant.

Lloyd W. Davidson, State's Att'y., of Austin, for the State.

KRUEGER, Judge.

The offense is burglary; the punishment assessed, confinement in the state penitentiary for a term of 5 years.

The record shows that on the night of November 13, 1937, appellant and Clyde Cady forcibly entered an A. & P. Store in the City of Dallas and took therefrom cigarettes, tobacco, candy, chewing gum and other goods. The entry into the building was made through the roof and ceiling by boring holes across two sides and breaking out a hole large enough to allow the entry of a single person onto a metal ceiling, which in turn was broken through.

Sometime after midnight of said date, two policemen saw appellant and Cady in a Ford coupé near Kessler Drive. They decided to investigate the car, but the men fled and the officers pursued them in a patrol car. The fleeing men ran into a blind alley and became stuck in a mudhole. They abandoned the car and fled into the brush nearby, but the officers captured them with the aid of a flashlight. On the way to the police station, the men told the officers where they had secured the property which was in the abandoned car, and later, about 3 A. M. the appellant went with one Wright to the A. & P. Store and showed him how they had made the illegal entry. In the store a pair of gloves was found which appellant claimed. Appellant did not testify or offer any affirmative defense.

Appellant, for the first time in his motion for a new trial, complains of the admission of certain testimony, certain phases of the court's charge, and the fact that he was not given sufficient time since his indictment in which to employ counsel. These bills are all qualified by the trial court, who states that no objection was made to the court's charge. No exception was taken to the court's qualification of the bills; consequently they must be considered in the light of the court's qualification. As thus qualified, they fail to reflect reversible error. Art. 658, C.C.P., Vernon's Ann.C.C.P. art. 658, provides among other things that before the charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and shall present his objections thereto in writing, distinctly specifying each ground of objection. This appellant failed to do. See Sampson v. State, 78 Tex.Cr.R. 432, 181 S.W. 193; Arensman v. State, 79 Tex.Cr.R. 546, 187 S.W. 471; Miller v. State, 82 Tex.Cr.R. 586, 200 S.W. 398; Wilson v. State, 83 Tex.Cr.R. 593, 204 S.W. 321; Hill v. State, 89 Tex.Cr.R. 450, 230 S.W. 1005; McCauley v. State, 97 Tex.Cr.R. 1, 259 S.W. 938; Roberts v. State, 99 Tex.Cr.R. 492, 269 S.W. 103.

The admission of appellant's confession, made while he was under arrest, though not reduced to writing as required by Art. 727, C.C.P., is not a ground for reversal where no objection was made thereto at the time of its introduction and no affirmative defensive theory was interposed. See Davis v. State, 99 Tex.Cr.R. 477, 270 S.W. 165. This court has consistently held that evidence which is admitted without objection is not a predicate for reversal on the part of an accused, where no motion was made to exclude it. See Wilson v. State, 120 Tex. Cr.R. 293, 48 S.W.2d 282. Moreover, in the instant case, appellant told...