Stroud v. State

• Decision Date: 19 April 1933
• Docket Number: No. 15757.,15757.
• Citation: 60 S.W.2d 439
• Parties: STROUD v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W.2d 439

STROUD v. STATE.

No. 15757.

Court of Criminal Appeals of Texas.

April 19, 1933.

Rehearing Denied May 24, 1933.

Appeal from District Court, McLennan County; D. W. Bartlett, Judge.

Clyde Stroud was convicted of burglary, and he appeals.

Affirmed.

J. D. Willis, of Waco, for appellant.

Willard McLaughlin, Cr. Dist. Atty., and Frank M. Wilson, Asst. Cr. Dist. Atty., both of Waco, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

MORROW, Presiding Judge.

Burglary is the offense; penalty assessed at confinement in the penitentiary for life.

The indictment charges, in substance, that on the 26th of May, 1932, the appellant committed the offense of burglary. The elements of the offense, as defined in the statute, are properly embraced in the indictment.

In title 2, chapter 2, P. C. 1925 (article 48 et seq.), there is authority for the increase of penalty in a felony case less than capital where one has been previously convicted of a felony less than capital; and in article 63, P. C. 1925, it is said: "Whoever shall have been three times convicted of a felony less than capital shall on such third conviction be imprisoned for life in the penitentiary."

Precedents giving application of the law are found in the case of Walthall v. State, 109 Tex. Cr. R. 26, 2 S.W.(2d) 442.

The pleading in the present appeal charges that the appellant, prior to committing the offense of burglary for which he was tried, had previously been convicted of a felony of a like nature a number of times. The judgment assessing the penalty at confinement in the penitentiary for life is founded upon the assumption that the evidence adduced before the trial court supported the averments in the indictment.

Under the terms of article 760, C. C. P. 1925, the authority of this court to consider the statement of facts and bills of exception is restricted to those filed within ninety days after notice of appeal is given. This court is precluded from considering either the statement of facts or bills of exception in the present instance. The motion for new trial was overruled on August 30, 1932. The statement of facts and bills of exception were filed November 29, 1932, from which it appears that there elapsed a period of ninety-one days after notice of appeal was given and before the statement of facts and bills of exception were filed. See Benson v. State, 85 Tex. Cr. R. 126, 210 S. W. 538; Bargas v. State, 86 Tex. Cr. R. 231, 216 S. W. 173; Hill v. State, 92 Tex. Cr. R. 58, 241 S. W. 479. Many other precedents will be found in Vernon's Ann. Tex. C. C. P., vol. 3, 1932 Supplement, page 13 et seq.

No error having been perceived, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant makes a persuasive plea for consideration of his statement of facts, setting up by affidavit that his attorney got a leg broken in an automobile accident after this trial, and was thus hindered in getting the statement of facts filed in time. Without going into the matter at length, we give him the benefit of the doubt and consider said statement of facts in connection with this motion for rehearing.

A sack of potatoes was abstracted at night from a storage building in Waco. There was sufficient testimony to warrant the jury in finding that said potatoes were assisted by appellant and another out of a window in the rear of said building in the nighttime, either by the inserted arm of the taker, or by the use of some other instrument introduced between the iron bars across the aperture whose presence prevented other bodily entrance. A trainman observed two parties with sacks containing something in the neighborhood of said storage house, and notified officers, this being about 2 a. m. The officers testified that they went to the place in response to the call and searched for two men with sacks. Appellant and a man named Mershon were arrested. Two sacks, one paper and the other tow, each containing potatoes, were found near where the parties were. The tow sack was substantially identified as one which came from said storage house and which had contained potatoes. When arrested appellant was asked as to the two sacks and where they were, and said they were down at "that house close to the alley." The sacks of potatoes were found there. Asked about the contents, before they were found, he replied, "Just a few damned potatoes we stole." Appellant said they had two sacks of potatoes. Tracks and potato sprouts were noted on the ground beneath the windows of said storage house, in the house, and near which windows the sacks of potatoes were stacked. The windows were described and the fact testified to that they were not used as a place of entrance or egress to or from the building. The bottom of the windows was about five and one-half feet from the ground. At the time he was...