Robinson v. State

• Decision Date: 16 January 1895
• Citation: 29 S.W. 40
• Parties: ROBINSON v. STATE.
• Court: Texas Court of Criminal Appeals

29 S.W. 40

ROBINSON v. STATE.

Court of Criminal Appeals of Texas.

January 16, 1895.

Appeal from district court, Lampasas county; W. A. Blackburn, Judge.

Hubert Robinson was convicted of an attempt to commit burglary, with intent to steal, and appeals. Affirmed.

Lewis Wood and Matthews & Browning, for appellant. R. L. Henry, for the State.

DAVIDSON, J.

This conviction was for an attempt to commit the crime of burglary, with intent to steal. Appellant proposed to one Cox, who informed McDowell, the owner of the premises to be burglarized, and the money therein situated, of the intended burglary. McDowell replied to Cox by saying: "Just let him [defendant] come along, and we will try and catch him, and not insist on his coming, and not to encourage him to come. If he come, let it be of his own free will and accord, and voluntarily. I just said, `Let him come ahead'; not to stop him." There was no conflict in the testimony of McDowell and Cox upon this issue. Appellant was not induced by McDowell or Cox to commit the crime, but was the instigator and prime mover in the whole affair. Under this state of case, appellant did not have the consent of the owner to enter his house, or to take his money therefrom. This is a different case from that of Speiden v. State, 3 Tex. App. 156, and authorities cited. In Speiden's Case, the defendant entered the bank at the solicitation of a detective rightfully in possession, and with the consent of the owner. There were no such facts in this case. In Pigg's Case, 43 Tex. 108, it was held that "it is not consent to the taking for the owner to obtain the aid of a detective, who, for the purpose of detecting, joins the defendant in a criminal act, designed by the defendant, and carried into execution by actual theft." See, also, Johnson v. State, 3 Tex. App. 590; Allison v. State, 14 Tex. App. 122; Conner v. State, 24 Tex. App. 245, 6 S. W. 138.

The charge complained of is correct. It sets forth very clearly the rule contained in the cited cases. It follows, therefore, that the court did not err in refusing special instructions requested by appellant, because they were not applicable to the facts of this case. Cox did not, either of his own motive, or at the suggestion of McDowell, the owner, propose the burglary to the appellant, but simply agreed with him to commit the burglary, not intending or contemplating at the time its accomplishment. The evidence is amply sufficient to support the verdict. The case was...