Smith v. State

• Decision Date: 21 June 1905
• Citation: 90 S.W. 638
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

90 S.W. 638

SMITH v. STATE.

Court of Criminal Appeals of Texas.

June 21, 1905.

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

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

Rehearing denied December 20, 1905.

Louis Wilson, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of burglary, and her punishment fixed at three years' confinement in the penitentiary.

We do not think the court erred in overruling appellant's motion for continuance. It does not occur to us that there was sufficient diligence. Nor do we believe that it is probably true that said witnesses would testify to the alibi, which it is alleged they will prove; and in the face of the evidence presented in this record, if they did, we do not believe it would have any effect with the jury.

Appellant objected to Mrs. Grigsby's testimony, to the effect that the landlady screamed, and she rushed out where the woman was, and appellant threw her hand into her bosom and said: "Don't rush on me! I tell you don't rush on me!" Her husband said: "Go and ring for an officer." She walked out and rang for the officer. At that appellant walked back to the sidewalk and walked away. It seems to us that all of said testimony is admissible. If it be conceded that it is not competent to prove that the landlady screamed, we fail to see how that injured appellant.

In regard to appellant's objection to the charge on circumstantial evidence, the charge is not as full as those required in the approved forms. However, it seems to us that the testimony in this case brings appellant in such juxtaposition to the main fact as to render this a case of positive, and not of circumstantial, evidence. Adams v. State, 34 Tex. Cr. R. 470, 31 S. W. 372. The appellant was caught almost in the very act of burglary. She was seen by one witness to enter the house, and in a very short time she was found in the room alleged to have been burglarized. The fact that the door of that room was closed appears to be established by positive testimony. Mrs. Mary Julian, the owner or occupant of the premises, states that she had just gone out of her room and closed the door, and in a few minutes she went back in there and fixed the fire, and appellant ran out of her room. This room was occupied by Mrs. Julian and her sister, Alice Kirkland. Alice Kirkland says that she got up from the supper table to get her purse, which she left in that room, and that...