Russell v. State
| Decision Date | 04 February 1920 |
| Docket Number | (No. 5622.) |
| Parties | RUSSELL v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
John Russell was convicted of burglary, and he appeals. Reversed and remanded.
Monroe & Patterson, of Austin, for appellant.
Alvin M. Owsley, Asst. Atty. Gen., for the State.
Appellant was charged in the criminal district court of Travis county, Tex., with burglary, the indictment containing three counts, in the first of which it is alleged that the house entered was the private residence of J. M. Hancock, and that said house was entered at night, by force, threats, and fraud, without the consent of said J. M. Hancock, with the intent to take therefrom corporeal personal property therein being and belonging to the said J. M. Hancock, etc. The second count charged a nighttime burglary of the private residence of E. A. Dittmar, with intent to take therefrom property belonging to said Dittmar, without his consent, etc. The third count was a repetition of the first count, omitting the allegation of "private residence." The trial court submitted only the first and third counts, and appellant was found guilty under the first count; his punishment being fixed at five years in the penitentiary.
J. M. Hancock was not a witness on the trial, nor was his absence in any way accounted for, nor was it shown by circumstances that his consent to the entry of the house was not given. This court held in Moray's Case, 61 Tex. Cr. R. 549, 135 S. W. 569, that this was fatal error, under the facts as introduced.
It was not shown by any evidence that property of J. M. Hancock in said house was disturbed or taken, or that there was any intent to take said property, the only evidence of the loss of any property being that E. A. Dittmar and J. D. Smith had property taken from the room occupied by them at the time of said occurrence, which property was taken from their possession and without their consent.
In Roberson's Case, 51 Tex. Cr. R. 335, 101 S. W. 800, the evidence showed that the house burglarized was controlled by Wyatt, and the property taken therefrom was in the care, control, and management of Lamm. Two counts were in that indictment, one charging burglary of Wyatt's house, with intent to take Wyatt's property, etc., and the other charging burglary of Lamm's house, with intent to take his property. Only the Wyatt count was submitted, and this court held the evidence, showing ownership of the house in Wyatt, and of the property in the house which was taken to be in Lamm, would not support a verdict of guilty under the count charging burglary of Wyatt's...
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