Strickland v. State, 13369.

• Decision Date: 21 May 1930
• Docket Number: No. 13369.,13369.
• Citation: 28 S.W.2d 818
• Parties: STRICKLAND v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W.2d 818

STRICKLAND v. STATE.

No. 13369.

Court of Criminal Appeals of Texas.

May 21, 1930.

Appeal from Criminal District Court, Harris County; Whit Boyd, Judge.

E. W. Strickland was convicted for burglary, and he appeals.

Affirmed.

Hanson & Allen, of Houston, for appellant.

O'Brien Stevens, Crim. Dist. Atty., and E. T. Branch, both of Houston, and A. A. Dawson, State's Atty., of Austin, for the State.

HAWKINS, J.

Conviction is for burglary; punishment being twelve years in the penitentiary

The indictment in the present case charged by proper averments that appellant on July 2, 1929, burglarized a house occupied and controlled by D. H. Brogden with the intent to commit the crime of theft; the indictment then proceeds with the following allegation. "And the Grand Jury aforesaid do further present that said E. W. Strickland heretofore and prior to the commission by the said E. W. Strickland of said burglary, which is hereinbefore charged against him, he, the said E. W. Strickland under the name of E. W. Stricklin, was duly and legally tried on, to-wit, the 21st day of September, A. D. 1925, upon an indictment charging an offense of like character then and there legally pending against him, the said E. W. Strickland under the name of E. W. Stricklin, in the Criminal District Court of said County, and which said court then and there had jurisdiction of said case, the same being numbered 28241 on the docket of said court, and entitled the State of Texas v. E. W. Stricklin, and who was tried and convicted in said cause numbered 28241 under the name of E. W. Stricklin, and he, the same E. W. Strickland, under the name of E. W. Stricklin, was in said court then and there tried and convicted of an offense of a like character as that hereinbefore alleged against him in and by this indictment, he having been convicted on the said 21st day of September, A. D. 1925, in said cause numbered 28,241, of the offense of attempt to commit burglary of a house occupied and controlled by F. P. Clayton, and after the said felony conviction and judgment thereon had become final against him, the said E. W. Strickland under the name of E. W. Stricklin, he the said E. W. Strickland being the same person as the said E. W. Stricklin, committed the offense of burglary hereinbefore alleged in this indictment."

The averment quoted amply charges the former conviction in such manner as makes an enhanced penalty available, if the averments are supported by the evidence.

It was shown upon the trial that the house burglarized in the present case was a gin-house, and that on the occasion of the burglary belting of the value of near $250 was stolen. The next day appellant sold the belting, claiming it as his own with the explanation that he had a sawmill which he was giving up, and wanted to sell the belting. He gave the name of Finn, and accepted a check in that name given in payment for the belting. He had tried to sell the belting at another place. Appellant did not testify, but through other witnesses raised an issue of alibi which was submitted to the jury and settled against appellant. By proper evidence the state supported the averments as to the previous conviction of appellant for attempted burglary of Clayton's house with intent to commit theft.

The indictment was attacked for omitting to allege whether the burglary was committed in the daytime or nighttime. The indictment averred that appellant "did break and enter." The house was not a private residence, hence the averment mentioned was sufficient to authorize a conviction for burglary, whether by day or night, if supported— as was done in this case—by proof that force was applied to the building to effect entry. Carr v. State, 19 Tex. App. 635, 53 Am. Rep. 395. Many other authorities will be found collated in Branch'...