Rippey v. State

• Decision Date: 21 January 1920
• Docket Number: (No. 5555.)
• Parties: RIPPEY v. STATE.
• Court: Texas Court of Criminal Appeals

219 S.W. 463

RIPPEY v. STATE.

(No. 5555.)

Court of Criminal Appeals of Texas.

January 21, 1920.

On Motion for Rehearing, March 17, 1920.

Appeal from District Court, Potter County; Henry S. Bishop, Judge.

Edna Rippey was convicted of burglary, and she appeals. Affirmed.

Veale & Lumpkin and L. C. Barrett, all of Amarillo, for appellant.

Alvin M. Owsley, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant seeks to secure the reversal of a conviction in the district court of Potter county, Tex., for the offense of burglary; her punishment being fixed at two years' confinement in the penitentiary.

It appears from the record that one J. W. Cantrell was superintendent of the county poor farm of Potter county in 1918 and 1919, and as such had the care, control, and management of the buildings and property there located. It further appears that appellant was an inmate of said poor farm during the year 1918, and that in December of said year, and during her stay, some 13 hogs were killed by Cantrell, and the shoulders and hams salted down, and certain pure hog-meat sausage was ground, sacked, and hung up by him in the meat house. The whereabouts of the keys to the said meat house were shown to have been known to appellant. Afterward, certain of the hams, shoulders, and sausage having disappeared, the finger of suspicion was pointed at appellant, and also one Richard Fitzgerald, commonly called Dick Fitzgerald, who seems to have occupied the same dwelling as appellant, and they were arrested; and, without a writ from any court, or any permit from appellant, search was made of the house inhabited by Edna Rippey and said Fitzgerald, which resulted in finding therein certain sausage in a certain sack which was tied at the end with a certain knot. On this trial Mr. Cantrell identified with more or less certainty the sausage and the sack or cloth, and especially the knot, as being his property which, together with four hams and two shoulders, had been surreptitiously taken from said meat house without his knowledge and consent.

One Hollobaugh testified for the state that some time in January or February, 1919, he had breakfast at the house with appellant and Fitzgerald and one Claude Blackburn, who was staying at said house; that appellant made the biscuit, and Fitzgerald fried the ham and eggs which formed a part of said breakfast; that in a conversation had at the time Blackburn asked appellant if the hams were all eaten, and she said they were not, but that, when they were, she knew where there were plenty more, and where the keys were kept, and then she told about her and Dick going to the county farm, and how she went and got the keys and got the meat and took it out to the buggy, and how she heard a noise and thought Mr. Cantrell was shooting at her and ran, but Dick called her back and told her it was only a horse making a racket at the barn.

Miss Given, for the state, testified that about January 25, 1919, appellant and Dick Fitzgerald took dinner at her father's house, and some time while there Dick said that appellant was a good runner, or a race horse, or something of that kind, and they, referring to appellant and Fitzgerald, then told of being somewhere in the country, the exact place being undisclosed, and that they were getting some hams, and heard a horse kick, upon which appellant got scared and ran and dropped the hams, and, as witness thought, Dick went and got them. This witness did not think anything especially of the statement at the time, and did not gather therefrom that the parties had been out stealing hams.

One Blackburn swore that in February, 1919, he went to live at appellant's house, and that he saw some country hams there; that appellant told him that she and Dick Fitzgerald had gotten them from the county farm. She did not say whether they had gotten them in the daytime or at night. She told him that she heard a horse kicking, and dropped the hams and ran. Both Fitzgerald and appellant told him about their going out to the farm and getting these things.

Both Blackburn and Hollobaugh admitted that they were under indictment for felonies.

For the appellant she was her own and only witness. She testified that she was at the county farm when the meat was put up, and helped with it, and knew where the keys were kept, but denied taking any of the meat, and specifically denied the statements attributed to her by the other witnesses, and denied being at the county farm at any time after December 13, 1918. She admitted that there were hams and sausage at her house, but denied knowing whence they came, except she said that Blackburn told her that Hollobaugh had brought some there.

We have given practically all the material evidence in the case.

Appellant objected to the testimony as to finding the sausage at her house, because the same was found in her absence, and the search was made without her consent, and, as she claims, in violation of law. The objection is without merit. The doctrine of res acta inter alios has no application. The finding of stolen property in the house or on the premises of one accused of their theft is material and admissible, and the fact that at the time the property was found such accused was absent, and had given no permission to make the search, would be immaterial. Nor would the fact that there might be some controversy as to the identity of the property affect the question of its admissibility; same could only go to its weight.

We can see no error in permitting the witness Cantrell to examine in the presence of the jury the sausage found in appellant's house, and also to testify that it was his, and had every appearance of the sausage taken from his meat house. He described the kind of cloth used in making the sacks in which the sausage was placed, and also particularly described the knot which he tied in the end of each sack; the sausage exhibited to the jury being in the kind of cloth identified by him, and being tied with said knots.

Appellant has a bill of exceptions to the question asked her while on the witness stand as to how Dick Fitzgerald earned his living while he stayed with her, to which the witness answered over objection, "I do not know." There might be many conceivable situations in which said question might be very material. The bill reserved thereto wholly fails to disclose the surrounding facts, or to set forth any reason why the overruling of the objection to said evidence was erroneous. It is well settled that a bill of exceptions must be complete within itself, and must exhibit such facts as will show the error complained of.

The court did not err in refusing appellant's request for a peremptory instruction of not guilty; nor do we think any special defense of alibi was relied on or supported by any proof. The mere fact that the accused denied her guilt, and stated that she was not at the county farm after December 13th, would not necessarily warrant a charge on alibi. She did not attempt to state where she was on the date of the alleged burglary on January 14, 1919, nor to show such fact by any evidence whatever. Neither was any special charge asked presenting this theory to the jury. Crane v. State, 57 Tex. Cr. R. 476, 123 S. W. 422; Williams v. State, 60 Tex. Cr. R. 453, 132 S. W. 345; Woods v. State, 80 Tex. Cr. R. 73, 188 S. W. 980.

The testimony of both Blackburn and Hollobaugh showed, if true, the presence of Dick Fitzgerald and his participation in whatever was done by appellant in connection with said burglary; also the sausage claimed by the state to have been taken from the burglarized house was found in the building occupied by both appellant and said Fitzgerald, and we do not think the court erred in submitting the law of principals as applied to said Fitzgerald and appellant.

None of the other matters complained of present any question which seems to call for any discussion, except that it is urged the evidence does not make out a case of burglary against appellant. Having already set out at sufficient length the evidence, we will not further reproduce same. Appellant admits in her brief that, if the witness Hollobaugh can be believed, the case against her is made out. The trial court submitted the question to the jury as to whether this witness was an accomplice, and no serious objection was made to said charge. It is not claimed that Miss Given was an accomplice or in any way connected with the alleged crime. Her testimony and that of Mr. Cantrell amply corroborate that of the accomplices. Nor is there any doubt in the record but that the entry, if any, was made by the use of the keys, which would be the use of sufficient force, as applied to the building, to constitute burglary under our laws.

Finding no error in the record, the judgment of the trial court is affirmed.

On Motion for Rehearing.

Appellant files a vigorous motion for rehearing, attacking, in the first instance, that part of our opinion wherein we upheld the right of the state to introduce evidence that certain sausage, identified as being taken from the alleged burglarized house, was found in the house of appellant while she was absent; it being urged that the search of her house was without her consent, and without authority of law, and that therefore said evidence was inadmissible. That we may be more clearly understood, we will state that, when the owner of the alleged stolen property was on the witness stand and had testified to the loss of certain meat, he was asked by the state whether or not he had searched the premises of Mrs. Rippey for his missing hams, shoulders, and sausage. Laying her predicate for objection, appellant had him state that, when such search was made, she was not present, and that he did not have a search warrant, and that appellant had been arrested the night before, and was then in jail. Thereupon she objected to the question and its answer because the same would be hearsay, and because such search took...