Pruitt v. State

• Decision Date: 29 February 1928
• Docket Number: (No. 11122.)
• Citation: 2 S.W.2d 856
• Parties: PRUITT v. STATE.
• Court: Texas Court of Criminal Appeals

2 S.W.2d 856

PRUITT v. STATE.

(No. 11122.)

Court of Criminal Appeals of Texas.

February 29, 1928.

Appeal from District Court, Wilbarger County; Robert Cole, Judge.

On motion for rehearing. Motion for rehearing overruled.

For former opinion, see 299 S. W. 406.

A. G. Walker, of Vernon, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

LATTIMORE, J.

This case presents a singular situation. On November 9, 1927, we affirmed this case (299 S. W. 406), saying that no statement of facts appeared in the record. No motion for rehearing was then filed. The mandate was issued, and appellant conveyed to the penitentiary. When the opinion in this case came out in the advance sheets of the South Western Reporter, it was discovered by the attorney representing appellant that the affirmance was based on the absence of a statement of facts. Knowing that such statement of facts had been filed, he took the matter up with the authorities of the county where the prosecution was had, and the clerk of the district court of said county forwarded to the clerk of this court a statement of the facts herein, with a certificate that the failure to forward same was through the omission of such clerk.

Appellant asks that we again review this record in the light of the facts. We think it the duty of one representing his client to ascertain before cases are submitted in this court that all those things properly in the record are here; however, we would be unwilling to let one unjustly convicted suffer from the default of an official of the state. We have therefore examined the statement of facts. Same shows that more than $100 worth of carpenter's tools were taken from a burglarized house. These tools were found in appellant's house. No explanation was made of appellant's possession of said property. A bill of exceptions complaining of testimony as to the value of the tools seems without merit. We think the witness qualified to testify to the value of the articles, and that the record shows there was no market value for such tools at the place where stolen.

We are not impressed with the merit of the objection based on the proposition that the officer who found the tools had no search warrant. The wife of appellant gave to said officer permission to enter the house and make the search. We are not inclined to hold that, though it be shown without dispute that the officer said to appellant's wife that, if she did not give him permission to enter the house...