Trimmer v. State

• Decision Date: 15 June 1938
• Docket Number: No. 19889.,19889.
• Citation: 120 S.W.2d 265
• Parties: TRIMMER v. STATE.
• Court: Texas Court of Criminal Appeals

120 S.W.2d 265

TRIMMER v. STATE.

No. 19889.

Court of Criminal Appeals of Texas.

June 15, 1938.

Rehearing Denied October 19, 1938.

Commissioners' Decision.

Appeal from District Court, Oldham County; Reese Tatum, Judge.

J. F. Trimmer was convicted of burglary, and he appeals.

Affirmed.

E. T. Miller, of Amarillo, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is burglary; the punishment, confinement in the penitentiary for two years.

On the 26th of January, 1938, appellant and his nephew, Gene Gann, went to the home of W. B. Hurley about sundown and remained there until 8:30 p. m. During their visit they were with Mr. Hurley near his wheat granary and harness house. There was a ten-inch belt in the granary together with other of Mr. Hurley's property. As appellant and his nephew walked about the premises they left plain tracks. Appellant was wearing shoes with worn heels, and his nephew had on practically new slippers. They also had their car on the premises, which, according to the testimony of Mr. Hurley, left four "pickup tracks on the ground." Before going to bed Mr. Hurley closed the granary. He testified: "Yes, I did latch that door at that time. I know that very much. I know that I latched it." Upon going to his granary the following morning, he discovered that it had been burglariously entered. The door was open and his ten-inch belt was gone. He observed some new tracks. He testified: "I found some tracks just exactly like the others. I first noticed the tracks at the granary and I traced them right up to the granary and opened the door and this belt was gone." Moreover, he found tracks of an automobile similar to the tracks that had been made by the car of the appellant the night before. He testified, in effect, that the tracks of the two men were exactly like the tracks appellant and his nephew had previously made in the vicinity of the granary when they visited him.

Shortly after discovering that his granary had been burglarized Mr. Hurley went to Castro County, where appellant lived. Procuring a search warrant, he accompanied officers to the home of appellant and there a search of the premises was instituted. Appellant was not present at the time. The stolen belt was found in appellant's barn, which was not far removed from his residence.

The foregoing constitutes the substance of the testimony adduced by the state.

Appellant did not testify, and the record presents no affirmative defensive theory.

Several bills of exception relate to appellant's objection to the testimony of Mr. Hurley and the officers touching the result of the search. The affidavit for the search warrant was insufficient in that it was made upon information and belief, and contained no statement of facts and circumstances constituting probable cause. The state relied upon the fact that appellant's adult son gave his consent to the search. Appellant introduced his son's wife, who testified, in effect, that she and her husband were mere employees of appellant. It is appellant's position that, under the circumstances, the consent of the son was not binding upon him. We deem it unnecessary to decide the question. It is observed that Mr. Hurley testified without objection on the part of appellant as follows: "When I saw this belt, at the defendant's place, in Castro County, Texas, it had tar in this little place there. * * And the belt that we found I found to be the same that I have previously described in this case. * * * This belt that I found at the defendant's place the next day it had this place on it just like my belt did. It had the same kind...