Yarbrough v. State, 20053.

• Decision Date: 04 January 1939
• Docket Number: No. 20053.,20053.
• Citation: 123 S.W.2d 356
• Parties: YARBROUGH v. STATE.
• Court: Texas Court of Criminal Appeals

123 S.W.2d 356

YARBROUGH v. STATE.

No. 20053.

Court of Criminal Appeals of Texas.

January 4, 1939.

Appeal from District Court, Swisher County; C. D. Russell, Judge.

Jessie Yarbrough was convicted of burglary, and she appeals.

Reversed and remanded.

Mays & Mays, of Fort Worth, for appellant.

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

HAWKINS, Judge.

Conviction is for burglary, punishment being assessed at two years in the penitentiary.

Appellant, Richard Yarbrough, and Odee Pruitt were jointly indicted, charged with the burglary of Walker Jones' house in Swisher County on the 3d day of January, 1937. Appellant was alone upon trial in the present proceeding.

The statement of facts reveals that Walker Jones was in the retail drug business in Tulia, Swisher County, Texas, on January 3, 1937. His place of business was burglarized on the night of said January 3d. The safe had been battered or blown open and some $300 in money, jewelry and a "jewel box" taken therefrom. So far as the record shows none of the defendants named in the indictment had ever been seen about Jones' drug store, and the evidence is positive from Jones that he had never seen appellant there. A witness who was in the grocery business in Tulia testified that to his best judgment appellant was in his place of business twice the latter part of December, 1936—a few days before January 1st, 1937—and bought some bread and milk. About January 15th, 1937 police officers in Fort Worth, Texas, without a warrant, arrested appellant and Dick Yarbrough (appellant's husband) and one Odee Pruitt. They were in a car which Dick Yarbrough was driving, to which car was attached a house trailer. The parties were arrested on suspicion, it not being shown that the officers had any knowledge or information regarding the burglary at Tulia, or of the arrested parties' supposed connection therewith. Appellant and her companions were placed in the city jail and the car and trailer were taken to a garage used by the city officers to store such things taken from arrested persons. Appellant and her companions remained in the city jail for about nine days, at the end of which time they were transferred to the county jail. At the time appellant was so transferred she gave to the matron of the city jail—a Mrs. Richardson—a "jewel box", telling said matron she could have the box. This box was later seen by Jones in Mrs. Richardson's possession and identified by him as having been taken from his safe at the time of the burglary.

All of appellant's bills of exception, being five in number, relate to evidence regarding the "jewel box" in question. It will not be necessary to consider them separately.

It is recited in said bills that the "house trailer" which was attached to the car was the home of appellant and her husband in which they had lived since their marriage two years before the arrest in question; that appellant and her companions were arrested without a warrant of arrest; that they were not arrested for the commission of any offense, but merely on suspicion; that while defendants were in the said city jail, and without a search warrant and without permission of any of the three named defendants and without their knowledge, officers procured a key at the garage where the trailer had been placed by the officers, unlocked the trailer and took therefrom certain articles and delivered them to the sergeant at the city jail. From other recitals in the bills it appears that appellant took nothing to the city jail when she was arrested and placed therein, and that the "jewel box" in question was taken from said trailer by the searching officers and delivered with other articles to the said sergeant. It is further recited...