Stephens v. State

• Decision Date: 26 February 1913
• Citation: 154 S.W. 1001
• Parties: STEPHENS v. STATE.
• Court: Texas Court of Criminal Appeals

154 S.W. 1001

STEPHENS v. STATE.

Court of Criminal Appeals of Texas.

February 26, 1913.

Rehearing Denied March 26, 1913.

Appeal from District Court, Travis County; George Calhoun, Judge.

W. M. Stephens was convicted of burglary, and he appeals. Affirmed.

Thelbert Martin, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charges that appellant did by force, threats, and fraud break and enter a house there situate, and owned, occupied, and controlled by J. E. Barker, without the consent of the said J. E. Barker, etc.

There are several grounds urged against the sufficiency of the indictment, all of which are without merit. The indictment is in the usual form, and sufficiently charges burglary. One of the grounds is that it does not allege whether the burglary was committed in the daytime or night; nor does it allege what property was stolen, nor the value of the property; that it does not allege the character of the house, whether a private residence or otherwise. There is no merit in any of these contentions. The indictment does not have to allege what property was stolen, nor the value of it; nor is it necessary to allege the character of the house, unless it is intended to charge specifically that it was a private residence. This was not a private residence, nor is there any merit in the proposition that the indictment failed to allege whether the offense was committed in the daytime or nighttime. It does allege that the house was by force, threats, and fraud broken and entered. This was sufficient to cover a daytime or nighttime burglary. This question came specifically before the court in Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395. See, also, Montgomery v. State, 55 Tex. Cr. R. 506, 116 S. W. 1160; True v State, 48 Tex. Cr. R. 632, 89 S. W. 1066; Walker v. State, 55 Tex. Cr. R. 547, 117 S. W. 797.

Appellant requested the court to charge the jury as follows: "Gentlemen of the jury, you are instructed to disregard all testimony as to the possession by this defendant of a certain horse alleged to have been stolen from the prosecutor herein, J. E. Barker"—which the court refused to give. The court was correct in not giving this charge. The state's case was in substance that some one broke and entered the barn, or harness house, and took from it a saddle, bridle, and blanket. This occurred somewhere after 4:30 o'clock in the morning. The horse in question was taken at the same time and evidently by the same party. The horse was taken from the lot, not from the house. Appellant was seen with this animal 12 to 18 days afterwards in San Angelo, some 300 miles from where the horse was stolen. The theory of the state was that whoever broke the house to get the bridle, saddle, and blanket did so for the purpose of riding the animal which was stolen at the same time and place. The possession by defendant of the horse was a strong circumstance to connect him with the burglary. If he took the horse from the lot, he was evidently the party who committed the burglary. The court in charging the jury limited the effect of this testimony. A charge asked by appellant was to the effect that they should disregard all testimony showing, or tending to show, that the offense herein charged was committed at any other time than in the daytime, and should confine their consideration of the testimony and evidence to a daytime burglary, and if they should find that the testimony does not show a daytime burglary, or if they should believe that the evidence showed a burglary committed at any other time, then that should acquit defendant. This charge was properly refused. The indictment was sufficient to charge the burglary was committed at night or in the daytime. It was evidently committed, however, after 4:30 in the morning, and before daylight.

The court charged the jury that evidence having been introduced as to the alleged taking of the gray mare from the possession of the alleged owner at the time of the burglary from the harness house, and from the witness Barker, they must believe beyond a reasonable doubt that defendant took said mare, and, if they believed from the evidence beyond a reasonable doubt that the defendant took said mare at the time of the alleged burglary, then they could consider the said testimony only for the purpose for which it was allowed to be introduced— that is, for the purpose of assisting the jury (if it shall assist them from the facts and circumstances attending the said taking of said...