Prata v. State

• Decision Date: 13 January 1915
• Docket Number: (No. 3379.)
• Citation: 172 S.W. 974
• Parties: PRATA v. STATE.
• Court: Texas Court of Criminal Appeals

Page 974

172 S.W. 974

PRATA v. STATE.

(No. 3379.)

Court of Criminal Appeals of Texas.

January 13, 1915.

Rehearing Denied February 3, 1915.

Appeal from District Court, Taylor County; Thomas L. Blanton, Judge.

Jose Prata was convicted of burglary, and he appeals. Affirmed.

Will S. Payne, of Abilene, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary. The indictment follows the statute, and is in exact accordance with the form of such indictment laid down by Judge White in his Annotated Code, § 1432, and is clearly sufficient.

The evidence shows that Leal's house was burglarized, and a suit of clothes and a target gun stolen therefrom. One witness testified that appellant was in a certain restaurant in the town of Trent where the burglary occurred and asked to know where said Leal was. This witness, in going to his home, accompanied appellant near said Leal's house and pointed it out to him. He left him, went towards Leal's house, and said he was going to see Leal. A few days later appellant is shown to have traded said gun to Ernest McCright, a boy who lived with his father some few miles in the country from the town where said house was burglarized. The gun was clearly identified as that stolen from the house when it was burglarized. Still a day or two later appellant was caught at Stamford, and at the time was wearing said suit of clothes which was identified and surrendered to Leal, the owner. Appellant himself admitted on the stand that he had said suit of clothes and gun in his possession a few days after the burglary, but testified he had bought them from another Mexican before the burglary. The court gave appellant's special charge to the effect that if the jury believed appellant bought said articles to acquit him; and also gave his special charge to the effect that if said property was found in his possession, but was stolen from said house and when his possession of the property was first questioned, he made an explanation as to where he got it which was probably true, then to find him not guilty unless the state had proved the falsity of said statement beyond a reasonable doubt. No objection was made to the court's charge at the time of the trial.

The court did not err in permitting the witness to state that said two articles of property were stolen from said house, although the indictment did not specifically allege that the said articles had been stolen therefrom. Lynne v. State, 53 Tex. Cr. R. 386, 111 S. W. 151; Alinis v. State, 63 Tex. Cr. R. 371, 140 S. W. 227; Moseley v. State, 43 Tex. Cr. R. 559, 67 S. W. 414.

Appellant has these two bills of exceptions:

No. 2: "Defendant excepts to the ruling of the court in permitting the witness A. M. McCright to relate some alleged conversation had between himself and Sam Leal three days after the alleged burglary, when said Ernest McCright told his father that he had traded for a target from a Mexican — defendant was not present at the time the alleged conversation was had between the witness A. M. McCright and Sam Leal, nor the witness Ernest McCright — because the defendant was not present and could not be bound by any statement made by either party, and because the testimony was not and could not show the defendant's guilt, nor connect him in any way with the alleged...