Williams v. State

• Decision Date: 31 January 1912
• Parties: WILLIAMS v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W. 634

WILLIAMS v. STATE.

Court of Criminal Appeals of Texas.

January 31, 1912.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Jim Williams was convicted of burglary, and he appeals. Affirmed.

Gibson & Calloway, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment contains three counts; the first charging assault with intent to rape; the other two charging a nighttime burglary with different intents. The conviction was had under the third, which charged a burglary with intent to commit the crime of theft; the punishment being assessed at 12 years in the penitentiary.

1. Appellant moved to quash the first count in the indictment because of what was thought to be a fatal omission in the allegations. The county attorney, as he commenced his opening address to the jury, stated, in substance, that he had concluded to abandon the first count, for the reason that the penalty for the character of assault therein attempted to be alleged was not as grave a penalty as the penalty defined for the commission of burglary, and for this reason only did he abandon the first count. Appellant objected to these remarks, and asked the court to instruct the jury not to consider them, but to withdraw said remarks from the consideration of the jury, and asked that the county attorney be reprimanded; but the court failed to reprimand the county attorney, or withdraw from the consideration of the jury these remarks, and the county attorney repeated to the jury that the only motive which influenced him in abandoning said first count was the fact that the penalty for the character of assault charged in said first count was smaller than that for burglary. Appellant's contention is that these remarks were prejudicial and detrimental to his interest, and had a tendency to mislead and misdirect the jury, and that the remarks were highly improper, and that the court would neither give the instructions as requested, and failed to reprimand the county attorney. We are of opinion that these remarks should not have been made to the jury. The remarks were improper, but were not of such a nature as to require a reversal of the judgment. The reasons for dismissing a count from the indictment are required to be given at the time the motion is made by the prosecuting officer. It is not a matter for the jury, however, but for the court. The county attorney seems not to have been very accurate in his statement in regard to the penalty for the two offenses. The punishment for assault with intent to rape is for any term of years in the penitentiary not less than two, which could go far beyond the maximum punishment for burglary, which is 12 years. If the county attorney, in making this statement, dismissed it for the reasons stated, it may have been beneficial to the defendant; at least, the fact that he did dismiss it was, because the jury could have inflicted a much higher punishment than that which was found by them. Anyway, we are of opinion that the matter, as it occurred, was not of sufficient importance to require a reversal. There is some question raised with reference to the second count and the charge submitting that to the jury—burglary with intent to commit rape. In the attitude the record was left, when the county attorney dismissed the count charging assault with intent to rape, this count should not have been submitted to the jury. The county attorney had abandoned and dismissed the first count, and, having abandoned as to the assault to rape, that passed out of the case, and the court should not have submitted it. The jury would not have been authorized to find the defendant guilty of burglary with intent to rape, when the county attorney had abandoned that phase of the case.

2. The attorneys for the appellant presented to the court an instruction to the effect that the jury should acquit defendant on the second and third counts in the indictment, contending there was no evidence to support either. This was refused. Inasmuch as defendant was convicted on the third count, the instruction with reference to the second count will not be further noticed. We are of opinion that the court was not in error in refusing to give the instruction in regard to the third count. Under our authorities, we are of opinion that there was evidence sufficient to justify the jury in reaching the verdict they rendered.

3. Another bill recites that while Mrs. Effie Wiles was upon the stand she was permitted to testify that the private residence, alleged to have been burglarized, was broken into and entered without her consent. Defendant urged that the testimony was inadmissible, improper, and prejudicial, for the reason the indictment alleged a nighttime burglary of the private residence of Frank Wiles. The statement of facts shows that Frank Wiles was the husband of Mrs. Effie Wiles, and was absent from home on the night mentioned, in the city of Dallas, some 18 or 20 miles distant from his home; and that his wife and three little children were occupying the house that night with no other inmates. The indictment further alleges that the house was under control of Frank Wiles, and that it was entered without his consent, and with the intent to take property without his consent. It was not necessary to allege the want of consent of Frank Wiles, or any one else, so far as the entry of the house was concerned; and it was not necessary to prove this allegation. It was necessary, however, in some manner to prove want of consent to take the property had any been taken. The question here is, not that the state failed to prove the consent or want of consent of Frank Wiles, but the contention is that it was error to permit Mrs. Wiles to...