O'Neal v. State

• Citation: 291 S.W. 892
• Decision Date: 16 February 1927
• Docket Number: (No. 10332.)
• Parties: O'NEAL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 892

291 S.W. 892

O'NEAL v. STATE.

(No. 10332.)

Court of Criminal Appeals of Texas.

February 16, 1927.

Appeal from District Court, Knox County; J. H. Milam, Judge.

J. L. O'Neal was convicted of burglary, and he appeals. Affirmed.

Dickson, Newton & Dickson, of Seymour, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

HAWKINS, J.

Conviction is for burglary; punishment being two years in the penitentiary

Bill of exception No. 3 brings forward appellant's complaint at the court's refusal to arrest the judgment, which was sought upon the ground that the indictment was fatally defective in that it did not aver that appellant "fraudulently" entered the house. We perceive no vice in the indictment. It follows approved forms as well as the statute defining burglary and theft. Articles 1389 and 1410, P. C., 1925. It avers that appellant entered a house occupied and controlled by Lester Brown in the nighttime by "force," and with the intent to "fraudulently" take therefrom property belonging to Brown, and contains the further averments which would constitute theft.

Bills 1 and 2 raise in different ways appellant's contention that the evidence is insufficient to support the verdict and judgment. Brown returned to his home late in the night, about 11 o'clock, drove his automobile in the garage, locked the car, closed and fastened the doors to the garage, and went into his residence. A short time thereafter he saw two parties crossing the street, going in the direction of his garage, and soon heard talking apparently in the garage. Upon investigation, he discovered that the door of his garage was standing open about 18 inches. He returned to the house, secured a gun, and approached within about 20 feet of the garage door. He could hear talking inside, and could hear a noise, but could not tell what was going on. He ordered the parties to come out. Some one from the inside requested him not to shoot, and appellant and his brother emerged from the garage. They were taken in charge by Brown and turned over to the officers. Upon returning to the garage, appellant made an examination and discovered that his car tools, which had been under the back seat when he left the car, were then upon the floor of the car between the two seats. Nothing was missed from the car or the garage. Appellant's contention that the facts do not show entry of the garage with intent to commit theft is wholly without merit. If Brown's evidence is true, the tools had been moved by appellant or the party with him, and it is not likely they would have brought them or other articles they intended to steal out of the garage when they had been detected and the owner was standing there with a drawn gun. We quote the text and supporting authorities from Branch's Ann. Tex. P. C. § 2344:

"The intent with which the defendant entered the house is a question of fact for the jury, to be gathered from all the circumstances of the case. When it is alleged that the burglarious entry was made with intent to commit theft, and the jury have found that such entry was made with such intent, and such finding has been approved by the trial court, the judgment of conviction will ordinarily be sustained if there is nothing in the testimony to indicate that such entry was made with any other intent. Franco v. State, 42 Tex. 276; Alexander v. State, 31 Tex. Cr. R. 359, 20 S. W. 756; Mullens v. State, 35 Tex. Cr. R. 149; 32 S. W. 691; Matthews v. State [Tex. Cr. App.] 38 S. W. 172; Smith v. State, 51 Tex. Cr. R. 427, 102 S. W. 406; Moore v. State, 52 Tex. Cr. R. 364, 107 S. W. 355; Williams v. State 143 S. W. 634; Black v. State 165 S. W. 571."

Appellant requested the court to instruct the jury that, if appellant conceived the intent to steal after he entered the house, he should be acquitted. The refusal of this charge is made the basis of complaint. Appellant did not testify, and introduced no testimony in his own behalf, explaining...