Weathered v. State

• Decision Date: 17 February 1932
• Docket Number: No. 14803.,14803.
• Citation: 46 S.W.2d 701
• Parties: WEATHERED v. STATE.
• Court: Texas Court of Criminal Appeals

46 S.W.2d 701

WEATHERED v. STATE.

No. 14803.

Court of Criminal Appeals of Texas.

February 17, 1932.

Commissioners' Decision.

Appeal from District Court, Taylor County; M. S. Long, Judge.

L. B. Weathered was convicted of burglary, and he appeals.

Reversed and remanded.

Martin, Shipman & Winters, of Abilene, for appellant.

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

CALHOUN, J.

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

The indictment charged the appellant did break and enter a house then and there occupied and controlled by Earl Hughes without the consent of said Earl Hughes.

Earl Hughes, the tax collector of Taylor county, had his office in the courthouse of said county. The tax assessor, J. T. Howard, had his office immediately south of the office of the tax collector. There was a partition between the two offices. In said partition there was a doorway, but there was no door or any obstruction whatsoever, the door in the partition having been taken down and entirely removed some time previous to the alleged burglary. On the morning after the alleged robbery, it was discovered that some one had tampered with the safe in which the tax collector kept his money. The testimony further showed that both the assessor and tax collector's doors, which led into the hallway, had been locked when the offices were closed on the night before. Both doors appeared to have been attempted to be opened and there was evidence to the effect that the tax assessor's front office door was opened; that is, it did not have the latch on it.

Appellant insists that there is a fatal variance between the allegation of the indictment and the proof offered, in that the indictment alleged that the house entered was occupied and controlled by Earl Hughes, when in fact the evidence showed that it was occupied by J. T. Howard. We regard the evidence showing that the rooms set aside for the tax collector and for the assessor were jointly occupied and controlled by the two. Article 402, Code of Criminal Procedure, provides in part: "Where one person owns the property, and another person has the possession of the same, the ownership thereof may be alleged to be in either. Where property is owned in common, or jointly, by two or more persons, ownership may be alleged to be in all or either of them." This article has been construed by this court in the case of Bailey v. State, 50 Tex. Cr. R. 398, 97 S. W. 694, to refer not only to a technical joint possession, but as well to a case where the parties exercised a joint or common possession of the property. See, also, Duncan v. State, 49 Tex. Cr. R. 150, 91 S. W. 572; Davis v. State, 63 Tex. Cr. R. 453, 140 S. W. 349; Russell v. State, 86 Tex. Cr. R. 580, 218 S. W. 1051; Reasoner v. State (Tex. Cr. App.) 36 S.W.(2d) 163.

Appellant also earnestly urges the insufficiency of the evidence to support the verdict. The evidence in brief shows that on the night of January 31, 1931, or the early morning hours of February 1, 1931, some one apparently entered the office of the tax collector in Taylor county and the knob on his vault was knocked off. The vault, however, was not entered, although some tools and punches were found near the vault door, and on the desk to the left of the vault door was found a flash-light, the glass and globe of which had been broken. The testimony tended to show that the entrance to the tax collector's office was made by entering the door that led into where the tax assessor had his office. This entrance was gained through the opening of an outside door which, from the testimony, appeared not to have been locked, but merely closed. It was testified to that there were some finger prints on the reflector of the flash-light. Appellant was arrested for investigation in connection with the matter, and his finger prints were taken and photographs taken thereof, and on the trial a finger print expert testified that he found on the reflector in the flash-light a finger print of the middle finger of the right hand and it corresponded to the finger...