Ware v. State, 23769.

• Citation: 207 S.W.2d 868
• Decision Date: 22 October 1947
• Docket Number: No. 23769.,23769.
• Parties: WARE v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 868

207 S.W.2d 868

WARE v. STATE.

No. 23769.

Court of Criminal Appeals of Texas.

October 22, 1947.

Rehearing Denied December 10, 1947.

Appeal from District Court, Clay County; Louis T. Holland, Judge.

Henry Harold Ware was convicted of burglary, and he appeals.

Affirmed.

J. Walter Friberg, of Wichita Falls, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

GRAVES, Judge.

The opinion heretofore delivered herein on June 18, 1947, is hereby withdrawn and the following substituted therefor:

Appellant was charged in the first count of an indictment with having burglarized the store of Earl G. Sledge in Clay County for the purpose of committing theft on Dec. 28, 1946, and in a further count it was alleged that prior to the commission of the above alleged offense, appellant had been convicted on February 3, 1944, of an offense of like character in the District Court of Tarrant County, Texas, in cause No. 45,152, styled State of Texas v. Henry Harold Ware, and said latter conviction became final before the commission of the above first alleged offense. Appellant was convicted and a penalty of twelve years assessed against him from which conviction he appeals.

Appellant complains because the trial court required the jury to find him guilty, not only of the offense of the burglary first charged in the indictment, but also of the prior burglary charged therein to have been committed in Tarrant County, the guilt of both of which burglaries they must find beyond a reasonable doubt before they could convict appellant herein.

We find that had the court so desired, he could have instructed the jury relative to the recent offense and given the penalty therefor, and could have gone further and instructed the jury relative to the earlier offense in Tarrant County and told them that they could enhance the punishment if they found he had been theretofore convicted of the prior offense as alleged in the second count. We have held, however, that when the trial court coupled both offenses together, he could submit them to the jury jointly, thus being more liberal to an accused than the law required, but such liberality could not be complained of by an accused. See Punchard v. State, 142 Tex. Cr.R. 531, 154 S.W.2d 648, in which case we held that a charge of similar import to the one here under consideration "was more favorable to appellant than that insisted upon by him, because, under the charge, although the jury may have believed appellant guilty of the primary offense, yet they were required to acquit him if they entertained a reasonable doubt as to his guilt under one of the allegations of prior conviction."

In a conviction under Art. 62, P.C., it being under an allegation of a second felonious offense, it was not necessary for the jury to find the amount of punishment, the statute itself fixing the maximum penalty provided therefor in the event of a conviction. See Smith v. State, 131 Tex.Cr.R. 472, 99 S.W.2d 937; Gerard v. State, 91 Tex.Cr.R. 374, 238 S.W. 924.

There are bills of exception to certain argument to the jury by the State's attorney. Nowhere in said bills is it shown that such argument was not invited by that of appellant's attorney. Furthermore, we do not think error is shown in any of such bills. The only argument complained of which was not withdrawn by the trial court seemed to have been a legitimate deduction from the facts.

Appellant was arrested at what was shown to have been the home of one Butler in the City of Dallas in Dallas County, Texas. His arrest is claimed to have been illegal, as well as a subsequent search of the Butler home. As to the search thereof, Butler's wife, who was present at such search which was made in Butler's absence, gave her consent thereto, so the evidence shows, and we think that under the testimony, it is also shown that the arresting officers had been informed that two described persons had committed a felony at a place quite a distance away from Dallas and that they were about to escape; that they were driving a certain numbered and described automobile, and a description of the two men had been given them; that they saw this automobile parked in front of the place where Butler lived; that they entered therein and found two men who fitted the description given them and they arrested both of them; that they were taken back to Clay County and there filed upon. We think this arrest was justified under the statute. See Art. 215, Vernon's Ann.Tex. C.C.P., and cases cited under said article in the 1946 Pocket Part; also Warren v. State, 130 Tex.Cr.R. 456, 94 S.W.2d 463.

It is evident from the record that the persons committing the robbery were in the automobile found in...