Smith v. State

• Decision Date: 28 May 1919
• Docket Number: (No. 5398.)
• Citation: 212 S.W. 660
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

Page 660

212 S.W. 660

SMITH v. STATE.

(No. 5398.)

Court of Criminal Appeals of Texas.

May 28, 1919.

Appeal from District Court, Donley County; Henry S. Bishop, Judge.

Ira Smith was convicted of burglary, and he appeals. Affirmed.

A. T. Cole, of Clarendon, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was convicted of burglary in the district court of Donley county, and his punishment fixed by the jury at confinement in the penitentiary for a period of five years.

J. B. Masterson had a store in the little town of Hedley, Donley county, Tex., and on the night of November 4, 1918, his store building was entered and an overcoat, certain quantities of silk, six pairs of ladies' shoes, and some ladies' suits were taken. There is no contest in this case of the fact that said store was burglarized and said property taken. The store had a front and a rear door, each of which the proprietor said was locked on the night in question; the rear door being locked with a Yale lock and the front door with an ordinary lock, the latter of which could be unfastened by several keys which were in evidence. The case was one of circumstantial evidence, and there seems to be no complaint as to the manner in which the law on that question was presented to the jury. The only contention made here is that the evidence is not sufficient to support the verdict. The burglary was on the night of November 4th, and on the afternoon preceding the proprietor was showing his stock of overcoats and sold one to a customer. The next morning, when the burglary was discovered, Masterson at once discovered that an overcoat which he had shown to said customer the afternoon before was gone, along with the other property mentioned. The overcoat was described by the owner as to make, size, and color and pattern, and an overcoat was identified by him in the courtroom as being the one taken from his possession or one which was exactly identical with the same; his expressed opinion being that it was his overcoat. It was testified by the customer who bought an overcoat the afternoon before that he saw in the owner's possession in said store an overcoat identical in all respects with the one exhibited in the courtroom at the trial. A witness named Goldston testified that on the day of the alleged burglary a man whom he identified as appellant came into his store and bought from him a watch case. Said witness testified that after selling the appellant the watch case he walked with him down to a jewelry store to get the time and to the BonTon, where they got a drink, and he states that appellant did not have on any overcoat at that time. On November 7th, it was testified by Miss Grace Dawn, a chambermaid at the Union Hotel in Amarillo, that she went up to a certain room to clean it up and that appellant was in the room and engaged her in conversation and asked her if she wanted to buy some shoes, some silk, and a lady's suit, and upon her expressing willingness to purchase if the articles suited, he told her that he would bring them to let her look at them that night, cautioning her not to say anything about his having them, as he did not want it talked about. A few minutes after this conversation she notified...