Hay v. State

• Decision Date: 24 January 1951
• Docket Number: No. 25041,25041
• Citation: 237 S.W.2d 987,155 Tex.Crim. 604
• Parties: HAY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 987

237 S.W.2d 987

155 Tex.Crim. 604

HAY v. STATE.

No. 25041.

Court of Criminal Appeals of Texas.

Jan. 24, 1951.

Rehearing Denied April 11, 1951.

Allen, Locke & Kouri, by Z. D. Allen, Wichita Falls, for appellant.

George P. Blackburn, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The offense is burglary. The punishment assessed by the jury, on a plea of not guilty, was twelve years.

The Evans Pharmacy in Wichita Falls was burglarized on the night of March 20, 1950. Discovery of the same was made by two city policemen, evidently while the same was in progress. One of the policemen, going to the back of the store on the outside, noted two men running away therefrom down the alley at the rear of same. An officer shot at these men with a shotgun and later, after they had gotten into a Ford car and started away, he shot at the rear of said Ford. An alarm was spread and a Ford meeting the description of this Ford was seen by other officers a few minutes thereafter. A wild chase followed and finally this Ford was abandoned near a dry creek. Three men were seen to flee therefrom. One officer searching the vicinity of the creek noted that the back door of Mr. Gotcher's house had been kicked in. When the officer made inquiries at the Gotcher home the owner thereof turned over appellant who had been found in his bathroom. Appellant had offered Mr. Gotcher $100 to conceal him from his pursuers. Before discovering appellant in his bathroom Mr. Gotcher had heard a noise being made with the toilet tank. After the officers left Mr. Gotcher discovered in said tank certain electric fuses, dynamite caps and a certain quantity of nitroglycerine. This was later turned over to officers and then identified as such by an expert in explosives who testified at the trial.

A search of the burglarized pharmacy revealed that the combination knob and the handle had been prized off of a safe. A large bar, a hammer and a sledge hammer were found on the floor. The burglars had forced the back door in order to make their exit. In the alley behind the store was found a gas mask. A search of the Ford car found at the creek, and identified as that of appellant by a tourist court registration, revealed a brown canvas bag containing two crowbars, punches, chisels and other tools incident to the burglary profession. Also several pairs of silk gloves, some tear gas cartridges, a tear gas pencil or gun, a regular pistol which was loaded, seismograph electric and mercury blasting caps, a quantity of fuses and a quantity of nitroglycerine were found.

The explosives found in Mr. Gotcher's toilet tank were of the same type as those found in appellant's car. A search of the outside of the Ford revealed three indentures appearing to have been made by buckshot.

Appellant comes before this Court with six bills of exception. Bill of Exception No. 1 complains of the overruling of his second motion for continuance. Such was made to secure the testimony of one Audie L. Miller who he alleges would testify that some time prior to the day of the Wichita Falls burglary he, Miller, and appellant were near a lake in Dallas together and that certain boys shot air guns into the back of appellant's car, thereby causing the indentures therein. Appellant's bill fails in the following respects:

(1) It is not shown in the bill of exception, same being on a second motion for continuance, that the testimony could not be produced from any other source known to the defendant. While it may have been true that Miller alone was with appellant at the lake in Dallas, still it is the existence of such indentures in appellant's car prior to the burglary that appellant needed to establish for his defense and not the cause of such indentures. Surely appellant's automobile was seen by many people, who could have been called as witnesses, between the time the indentures were alleged to have been made and the time of the burglary.

(2) It does not show that the automobile which appellant had at the lake in Dallas was the same automobile which the appellant had in Wichita Falls at the time of the burglary.

Bill of Exception No. 2 complains of admission of testimony about the finding of a gas mask in the alley at the rear of the burglarized premises. The court feels that such evidence is admissible in view of the evidence of the finding of a gas pencil or gun, and gas cartridges, in the appellant's automobile. The court further observes that appellant's bill is deficient in that it contains no recitation of fact other than the objection itself. The rule is well stated in 4 Texas Jurisprudence, Section 206, page 293.

Bill of Exception No. 3 is deficient because it fails to show that the argument complained of was not invited. Any bill of exception to argument of the State's attorney, in order to be effective as such, must contain a recitation that such argument was not in reply to some comment of appellant's counsel. 4 Texas Jurisprudence, Section 263, page 396.

Bill of Exception No. 4 complains of the argument of the prosecutor to the effect that, '* * * under the evidence he (the defendant) is a professional from Dallas.' This bill, like Bill of Exception No. 3, is deficient because it fails to show that such argument was not invited. However, it appears to the court that the paraphernalia traced to the possession of the defendant would certainly take him out of the amateur category.

Bill of Exception No. 5 complains of the argument of the State's attorney to the effect that: 'These...