Powers v. State

• Decision Date: 23 December 1913
• Parties: POWERS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 832

162 S.W. 832

POWERS v. STATE.

Court of Criminal Appeals of Texas.

December 23, 1913.

Rehearing Denied January 21, 1914.

Appeal from Criminal District Court, Dallas County; W. L. Crawford, Jr., Judge.

J. W. Powers was convicted of burglary, and appeals. Affirmed.

Ed B. Freeman and A. S. Baskett, both of Dallas, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant appeals from a conviction for burglary, with the lowest penalty affixed.

Appellant raises but two questions in the case: First, he claims the evidence is insufficient to support a conviction; second, that there is a fatal variance between the allegations and proof of the ownership and possession of the burglarized house.

The uncontradicted evidence clearly establishes that on the night of March 4, 1913, a storehouse was burglarized by breaking into one of the windows, and at the time certain property was stolen therefrom. Among other articles then stolen were some kodaks and a manicure or toilet set. The indictment alleged that the house burglarized was owned and occupied by T. Q. Martin, and that the property stolen was his property.

As to the first question: Said Martin testified: That his place of business was entered on the night of March 4, 1913. That he was in charge and control of the burglarized store jointly with O. L. Anderson; that he was one of the joint managers of the Owl Drug Stores, and he and Anderson together had charge of this particular store. He handled the financial end of it, and Anderson the sales end of it. That he presumed Anderson would be the manager. On cross-examination he testified: That the Owl Drug Store is a corporation, and that he and said Anderson owned the stock. That he was the treasurer and bookkeeper, and looked after the collections and attended to everything, except the actual sales. That he did the buying. That Anderson is what you would call the floor manager, and had charge of the help and the opening and closing of the store and the sale of the goods. "I keep a record of the stock in the store in order to be able to buy stock, and have charge of the kodak department—look after that as one of my duties. I do not look after the actual retail sales of them or do any of the actual selling myself." That said Anderson had charge of the sales department, and does the selling himself and by salesman in the store, a Mr. Daniels. That Mr. Daniels at that time looked after the kodaks possibly more than any other man, but that they all had the sale of them. That they recovered this stolen kodak and the said manicure or toilet set some six weeks after the burglary.

Said Anderson testified he was one of the partners in the Owl Drug Store, the burglarized store. On cross-examination: That the store belonged to him and Martin; that it is a partnership, but incorporated as the Owl Drug Store; that there were really three owners of it—himself and Mr. and Mrs. Martin —that they bought the store from Mr. Marvin when it was the Owl Drug Store; that Martin and he both had charge of the store; that he had charge of the store department, and Mr. Martin of the stock; that he in a way looked after the employment of help, but that Martin and he always kind of did that between themselves; that Martin in a way had to do with the sales department, and attended to the financial part of the business; that both watched that more or less, he, Martin, more than the witness; that it was not Martin's store individually; and that Martin did not have the exclusive control and management of it at the time; that Martin rented the place and paid the rent.

The court, at appellant's request, gave his special charge No. 3 as follows: "The indictment in this case alleges that the defendant burglarized a house belonging to T. Q. Martin, and the proof shows that the alleged burglarized house belonged to the Owl Drug Company, a corporation. I therefore instruct you that in order to sustain the allegation of ownership in the said T. Q. Martin, you must believe from the evidence beyond a reasonable doubt, that he, the said T. Q. Martin, was in the exercise of the actual control, care, and management of said house, and unless you so believe beyond a reasonable doubt, you will acquit the defendant." The court gave a correct charge, including a charge on circumstantial evidence, to which there is no objection. Our statute (article 457, C. C. P.) is: "Where one person owns the property, and another person has the possession, charge or control of the same, the ownership thereof may be alleged in either. Where property is owned in common, or jointly, by two or more persons, the ownership may be alleged to be in all or either of them." It will be noted that the statute says "possession, charge, ...