Prince v. State

• Decision Date: 01 January 1876
• Citation: 44 Tex. 480
• Parties: ANDERSON PRINCE v. THE STATE.
• Court: Texas Supreme Court

44 Tex. 480

ANDERSON PRINCE

v.THE STATE.

Supreme Court of Texas.

1876.

APPEAL from Victoria. Tried below before the Hon. T. C. Barden.

Prince was indicted for burglary in breaking into Bob Johnson's smoke-house with intent to steal, &c.

On the trial it was proved that on the night of 26th March, 1875, Johnson's smoke-house had been entered, the door lifted from its hinges, and about 150 pounds of bacon stolen. Tracks were seen next morning in the smoke-house, and which were followed in the direction of and to within five hundred yards of Prince's residence. Fifteen days after the theft a search-warrant was procured and bacon found in the possession of the accused which was identified by Johnson as his, and as having been taken from the smoke-house.

A witness testified that Prince requested him to swear that he had seen him (Prince) purchase the bacon. This was after defendant had been accused of the theft.

The charge of the court appears in the opinion.

The defendant was found guilty and his punishment fixed at two years' confinement in the penitentiary.

Upon the appeal the court ordered that the execution of the punishment, if the judgment should be affirmed on appeal, should begin at the expiration of a term of two years, to which defendant had been sentenced in a certain other case for theft from a house.

No brief for appellant.

George Clark, Attorney General, for the State.

REEVES, ASSOCIATE JUSTICE.

The appellant complains that the court erred in the instructions given to the jury and for refusing to give the instructions asked by appellant. Appellant asked two charges; one of them was given and the other was refused, and in place of it another charge was given by the court, as stated in the bill of exceptions. The charge asked and refused was, in substance, that possession of stolen goods, without other evidence of guilt, is not to be regarded as presumptive evidence of burglary. The court charged the jury, in substance, that if the defendant was found in possession of property which was stolen from the house, and his possession was recently after the theft, and that he failed to give a reasonable account of his possession, they might take these facts into consideration with all other facts and circumstances in evidence to enable them to determine whether the defendant was guilty or not of the offense with which he was charged. The instructions, taken as a whole, are as favorable to the defendant as he had any right to expect, in view of the evidence in the case.

It is further assigned for error that the court erred in overruling the defendant's motion for a new trial. The ground of the motion for a new trial, in addition to the grounds already noticed, is that the verdict of the jury is contrary to the law and the evidence. Without discussing this assignment, we think the evidence fully supports the verdict of guilty, as found by the jury.

It is further assigned for error that the sentence of the court is erroneous, in that it is cumulative and to be carried into effect in the future. The character and force of this objection will more fully appear from the following entry in the judgment of the court: “It further appearing to this court that at this term of the court the said defendant, Anderson Prince, has been tried and convicted of the offense of theft from a house, under indictment No. 1522 on the docket of Victoria county, and for which he has been sentenced to be imprisoned in the State penitentiary for a term of two years, it is ordered by the court that at the expiration of the last said term of imprisonment, and in case the judgment in this cause No. 1521 shall be affirmed by the Supreme Court of Texas, to which the defendant has appealed, then the sentence in this cause, after the execution of the sentence in cause No. 1522, shall be carried into execution.”

Courts of the highest authority have differed on the question as to whether one term of imprisonment was to commence on the termination of the punishment on another charge, or whether the terms should commence from the judgment and sentence of...