Smith v. State

• Decision Date: 01 May 1907
• Citation: 102 S.W. 406
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

102 S.W. 406

SMITH v. STATE.

Court of Criminal Appeals of Texas.

May 1, 1907.

Appeal from District Court, Dallas County; E. B. Muse, Judge.

John Smith was convicted of burglary, and appeals. Affirmed.

F. J. McCord, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of burglary and his punishment assessed at two years' confinement in the penitentiary, and he prosecutes this appeal.

There are no bills of exception to the admission or rejection of testimony. In appellant's motion for a new trial he complains because the court did not give a charge on circumstantial evidence. The facts developed did not render such a charge necessary. If the testimony did not show that appellant was guilty by positive evidence, unquestionably the evidence placed him in such juxtaposition to the offense as rendered a charge on circumstantial evidence unnecessary. On this point the proof showed that the proprietress of the lodging house, Mrs. Sims, who was in her room downstairs, heard some one open the front door and go upstairs into the room of the prosecutor, Huey. She did not know who this party was. In about half an hour the prosecutor, Huey, came and knocked on the front door. Mrs. Sims met him and remarked that she thought he had already gone to his room; that she heard some one go to his room. Prosecutor then requested her to go with him to his room, which was upstairs. When they got there, prosecutor found that the door had been unlocked. He then turned the bolt, and went in. After striking a match appellant rushed out from under the bed, and knocked prosecutor down and escaped, but both witnesses identified appellant as the person they saw under the bed. Under this state of case a charge on circumstantial evidence was not called for.

Appellant also complains in motion for a new trial that the evidence does not sustain the verdict, in that, if it be conceded an entry was made by appellant, the specific intent to steal was not shown by the evidence. The facts on this point are meager. The prosecutor says he kept no valuables in his room, only his clothing, bedding, and furniture; that he also kept a six-shooter in his room which, immediately after the burglary, he discovered was gone, but he testified that this pistol may have been taken before that night, as he did not remember to have seen it for some days prior to the burglary. What other purpose than to steal appellant had in going into the room is not suggested by any evidence, and...