Reasoner v. State
| Decision Date | 10 December 1930 |
| Docket Number | No. 13770.,13770. |
| Citation | 36 S.W.2d 163 |
| Parties | REASONER v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Brown County; E. J. Miller, Judge.
Elmo Reasoner was convicted of burglary, and he appeals.
Affirmed.
McGaugh & Darroch, of Brownwood, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
Offense, burglary; penalty, two years in the penitentiary.
Witnesses Charles Andrews and Wes Richardson jointly occupied a building in the town of Brownwood; the latter subrenting from the former and operating in said building a repair shop located in a small space cut off from the remainder of the room by a railing. This room was entered in the nighttime and a pistol then in the custody of Wes Richardson for repairs was stolen therefrom. Early the next morning after the burglary at night, appellant was in possession of a pistol on the streets of Brownwood, which was identified as having come from the burglarized premises. Some few days after this, the exact time not appearing, appellant made a statement to an officer that he had purchased this pistol.
It is insisted that there is a fatal variance between the allegations of the indictment and the proof offered, in that the indictment alleges that the house in question was occupied and controlled by Wes Richardson, while the proof shows that it was owned exclusively and controlled by Charles E. Andrews. We regard the evidence as conclusively showing that the room in question was jointly occupied and controlled by the two. Article 402, C. C. P., provides in part:
This article refers not only to a technical joint possession, but as well to a case where the parties exercise a joint or common possession of the property. Bailey v. State, 50 Tex. Cr. R. 398, 97 S. W. 694. See also Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Davis v. State, 63 Tex. Cr. R. 453, 140 S. W. 349; Russell v. State, 86 Tex. Cr. R. 580, 218 S. W. 1051.
Nor was there any error in the state proving want of consent in Charles E. Andrews, who was not named in the indictment. Coates v. State, 31 Tex. Cr. R. 261, 20 S. W. 585; Alsup v. State, 69 Tex. Cr. App. 117, 153 S. W. 624, 627; Branch's P. C. § 2345.
The exact status of appellant's explanation is involved in some doubt. The court, however, gave the appellant the benefit of a defensive charge upon explanation made by the appellant of his possession of the pistol to the effect that, if the jury believed it was reasonable, consistent with his innocence, and probably true, to aquit. The real defense was that he had purchased the pistol and same should have been affirmatively charged, but there was no exception to the court's failure to give this charge, nor do we find any special charge correctly presenting such issue. It is stated by Mr. Branch in his Penal Code: "If the trial court is bent on charging on `recent possession and explanation,' the following form is as nearly correct as can be devised under the authorities." This is followed by a form of charge. See Branch's P. C. § 2465. It is further stated in this paragraph: "An explanation is of no consequence...
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