No. 3953 | Tex. Crim. App. | Feb 16, 1916
Appellant was convicted of burglary, and his punishment assessed at two years in the penitentiary.
The evidence was amply sufficient to sustain the verdict. Appellant claimed and testified that he was in the house alleged to have been burglarized at the time, and stole therefrom certain articles, but he claimed that the brother of the owner of the house admitted him therein, and that they by agreement went therein to gamble. The effect of his testimony and claim was that at the time he entered the house he had no intention to commit any theft or do anything other than gamble with the brother of the owner of the house. The state’s case positively disputed the appellant’s defense. The court, in a correct, full, and apt charge, submitted all the questions raised to the jury for a proper finding.
Mr. Crittenden in appellant’s behalf testified that on the night of the burglary he passed said house, returning from church with his wife, and saw two persons come out of the back of said house, and he was permitted properly to describe these persons fully and how they were dressed. The effect of his description was to describe appellant as one of these parties, and the other as Ben Harris, the brother of the owner of said house. In his direct examination he stated positively that at the time he saw these persons he did not then form any opinion as to who they were. The appellant sought to prove by him that since then he had come to the conclusion of whom they were, and that he would now testify that they were appellant and said Ben Harris. The state objected to this, and the court went into the matter thoroughly, both before the jury and with the jury retired. He attaches as a part of his qualification the whole testimony of the witness in question
The judgment is affirmed.
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