Rowlett v. State

• Citation: 180 S.W. 1078
• Decision Date: 08 December 1915
• Docket Number: (No. 3859.)
• Parties: ROWLETT v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

180 S.W. 1078

ROWLETT v. STATE.

(No. 3859.)

Court of Criminal Appeals of Texas.

December 8, 1915.

Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.

James A. Rowlett was convicted of burglary, and he appeals. Affirmed.

John H. Crooker, Criminal Dist. Atty., T. J. Harris, and E. T. Branch, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted for burglary under the name of Tom Jones, and on the trial suggested his true name as James A. Rowlett, and at his suggestion his name in the indictment was so changed, and the trial resulted in a verdict of guilty assessing his punishment at three years in the penitentiary, and from the judgment thereon he appeals.

The indictment contained two counts charging the same transaction, the first being for an ordinary burglary, alleging that the accused "did break and enter" a house, and the second count charging a nighttime burglary of a private residence. The court gave appellant the benefit of the doubt under the testimony, and submitted only the first count, and, under the well-settled holdings of this court, this was tantamount to an election by the state; and, as said in Hopkins v. State, 61 Tex. Cr. R. 596, 135 S. W. 553, this was to the advantage of the accused. The testimony was doubtful as to when the house was burglarized, whether in the daytime or at night; the alleged owner not being present when the property was missed, and his wife having missed the property for the first time between 8 and 9 o'clock, possibly a little before 8 in the morning. It is true that it appears that the testimony also would have warranted the court in submitting both counts to the jury, but no objection was made to the charge before the case went to the jury; and as there was testimony to support the count submitted, and that count was favorable to the accused, he has no just ground of complaint. Perhaps the only difference in the result had the court submitted both counts would have been to cause the appellant to receive a more severe punishment. The burglary of a private residence in the daytime is on the same basis as an ordinary burglary; and hence there is nothing in appellant's motion for new trial or his bill of exceptions that would warrant a reversal on this account. Appellant has a bill of exceptions taken to the overruling of his motion for new trial and to the refusal to order an instructed verdict. These bills set out no facts, but simply recite that appellant excepted to such action of the court, and of course, present nothing to review.

Appellant claims that the evidence is insufficient to support the verdict. It is unnecessary to state all the...