Shepherd v. State
| Decision Date | 01 January 1874 |
| Citation | 42 Tex. 501 |
| Parties | CHARLES SHEPHERD v. THE STATE. |
| Court | Texas Supreme Court |
OPINION TEXT STARTS HERE
APPEAL from Criminal District Court of Harris county. Tried below before the Hon. Gustave Cook.
N. G. Kittrell, for the State.
Appellant was tried in the Criminal District Court of Harris county, on the first Monday in February, 1875, on an indictment charging him with having, on the 23d day of June, 1874, “about the hour of one of the night of the same day, entered the dwelling-house of one Martin Smith, feloniously, fraudulently, and burglariously, with the intent to steal the corporeal personal property of said Smith, and to steal, take, and carry away out of the house and from the possession of said Smith, said property, without the consent of the said owner, and with the intent to appropriate the same to his own use and benefit.” The indictment in the same count charged the accused with having stolen five dollars, the property of Smith, and from his house, after having burglariously entered the same. The jury found the accused guilty of burglary, and assessed his punishment at five years' confinement in the penitentiary.
The appellant is not represented in this court, and there are no assignments of error. The motion for a new trial presented the alleged facts, that the verdict was contrary to and unsupported by the evidence, and was contrary to law; and the motion in arrest of judgment rested on the averments, that “the indictment herein is vague, uncertain, and indefinite,” and “because said indictment improperly joins two distinct felonies in one and the same count, to wit, an indictment for burglary, and an indictment for theft from a house.” The grounds of motion for a new trial are completely negatived by the facts in evidence. The control of the house by Martin Smith, its use as a dwelling-house, the unlawful entry shortly after midnight by the accused, with the evident purpose of committing a theft, and his theft of the five Mexican silver dollars, on the date, as charged in the indictment, were all clearly and forcibly shown by Mrs. Smith and Mrs. Cohen, the witnesses for the State. The attempt to prove an alibi, by his gambling associate, who stated that on the night of the burglary and theft, he and the accused were at the house of one Wesley Alexander, and that they played poker from eight o'clock in the evening until four next morning; that Alexander and wife were there, but they cannot now be found, was considered by the jury, in view of the other evidence, as unworthy of belief. The attempt to impair the evidence of...
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Faulks v. State
...in the same count of an indictment. See Bernal v. State, supra; Powers v. State, 154 Tex.Cr.R. 73, 225 S.W.2d 176 (1949); Shepherd v. State, 42 Tex. 501 (1875); Hobbs v. State, 44 Tex. 353 (1875). Further, it is said in 3 Tex.Jur.2d, Indictment and Information, Sec. 43, pp. 612--3, 'Where t......
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Loakman v. State
...are expressly authorized by the statute. Pen. Code, arts. 712, 713. We have a line of decisions in this state, beginning with Shepherd's Case, 42 Tex. 501, holding, with the common law, that where the indictment charges both burglary and theft the theft would be included in the burglary, an......
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Crawford v. State
...cannot be had for both offenses, and a separate punishment assessed for each, or a joint punishment for both. 16 Tex. App. 417; Shepherd's Case, 42 Tex. 501. This is the only class of crime in which the statute specifically permits punishment for two distinct offenses, though forming parts ......