No. 1552. | Tex. Crim. App. | Feb 9, 1898
Lead Opinion
Appellant was convicted of burglary, and his punishment assessed at two years confinement in the penitentiary, and he prosecutes this appeal.
Appellant claims that there is a variance between the allegations of the indictment and the proof as to the ownership of the alleged burglarized house. The proof shows that the house entered was a chicken house, situated on the ranch of John Daggett, about seven or eight miles from his residence; that Ed Jahn was employed by him at a salary of $18 per month; that, among other things he was employed to look after, were a number of fowls, consisting of turkeys and chickens, which the said John Daggett bought and placed on the premises, with the understanding that Jahn's wife was to get a part of the increase. The possession of Jahn, under the testimony, was a mere custody, as that of a servant. The allegation of the indictment was correct. See Graves v. State (Texas Crim. App.), 42 S.W. Rep., 300. These observations apply in regard to the ownership of the house, and, in addition thereto, if there was a joint ownership in the fowls, then the property could be alleged in either; but there was not a joint ownership in these fowls, because Mrs. Jahn could only have a part of the increase.
Appellant also contends that the confessions of the appellant were *8 inadmissible, because he was not properly warned. We think that the testimony shows that he was properly warned. Not only this, but the confessions were admissible on another ground. The fruits of the crime were found in pursuance of the confessions of the appellant. True, the property was not found in the exact place as stated by the appellant, but evidently it had been there, and was left there by the appellant, because the smokehouse contained a lot of feathers, identified as belonging to the chickens and turkeys taken. They had doubtless been moved from there a short distance by others after the arrest of the appellant, but they were traced from the smokehouse to a thicket near by, on the premises of Burns, where appellant stated they would be found. But for this statement, that they were on Burns' premises, there is no suggestion that search would have been made there by the officers for the lost property.
There is no error in the court rereading the charge as corrected by him. There was no occasion to give the special charge requested, as all the facts in the case had been properly covered by the court's charge. As applied to the facts of this case, the special charge given by the court as to the definition of actual care, control and management was not calculated to injure appellant. Nor was there any error in the definition of the court of a breaking — in defining the same as applied to a daytime entry. The character of force is the same. The judgment is affirmed.
Affirmed.
The giving of this charge was fundamental error, even though the question be first raised by defendant's assignment of errors. See Isham. v. State, 41. S.W. Rep., 622.
2. This court erred in holding that the charge of the court below as to what would be actual care, control, and management as shown by defendant's bill of exceptions number 5 and his second assignment of errors.
Wherefore the court is respectfully asked to grant to defendant a rehearing, and to reverse this cause and remand same for a new trial.
Addendum
This case was affirmed at a previous day of this term, and now comes before us on motion for rehearing. Appellant insists that the evidence does not support the allegation as to possession *9 of the alleged burglarized house, and the property therein situated, in John P. Daggett, as charged in the indictment. On a review of the evidence in this respect, we agree to this contention. Some of the cases go to a considerable extent towards holding that the possession of property can be alleged in the owner, however remote he may be from the property itself, and although another is charged with the immediate custody of the same. All these cases are based on the idea that the custodian is the agent or servant of the owner, and holds the bare custody of the property. It is sometimes difficult to determine how far this principle extends. In Graves v. State (Texas Criminal Appeals), 42 Southwestern Reporter, 300, we believe this doctrine was carried as far as it can be reasonably extended. If the person holding possession of the property for the owner has a bare custody, and not a disposition of the property, and this is merely temporary — if he is a mere servant of the owner — the possession may well be alleged in the owner of the property, ignoring the possession of the servant. But that does not appear to be this case. [It is true that Ed Jahn was in the employ of John P. Daggett, but he was not located on the same place where John P. Daggett resided. He had charge of the place of the said: "John P. Daggett, situated some eight miles from where he lived. He appears to have had full management of said place, and all the property thereon situated. The owner of the place, John P. Daggett, visited said premises only occasionally. The fowls and chicken house in question were in the immediate possession of Ed Jahn, and they were looked after and attended to exclusively by said Ed Jahn and his wife. The latter, according to the testimony, had an interest in the increase of the fowls. The house alleged to have been burglarized was a small chicken house, in which these fowls roosted. Jahn was in the habit of closing up the door of said chicken house each night. The testimony shows that on the night in question one Priest, who was in his employ, fastened the door with a latch, and he also placed a rock against it. Under such conditions the proof did not sustain the allegation of possession in John. P. Daggett. See Scott v. State (Texas Crim. App.), 43 S.W., 336" court="Tex. Crim. App." date_filed="1897-12-15" href="https://app.midpage.ai/document/godwin-v-state-3962319?utm_source=webapp" opinion_id="3962319">43 S.W. Rep., 336. The indictment was in two counts. One charged the ownership and possession 'in John. P. Daggett, and the second count charged the possession and ownership in John H. Jahn. We presume the pleader in the second count intended to charge the ownership and possession in Ed. Jahn, but made a mistake in the initials. The conviction was under the first count of the indictment.
Appellant also complains of the court's charge instructing the jury as to the rule by which they were to pass on the credit of the witnesses. Among other things, it instructed them to reconcile the testimony of the witnesses if they could. If there were irreconcilable conflicts, then they were told to decide which of the testimony was entitled to be believed by them, and, in so determining, to consider the intelligence, interest, apparent bias or prejudice, if any, of the witnesses, as well as their manner of testifying. Appellant was a witness in his own behalf. This *10 charge was upon the weight of the testimony. See Harrell v. State, 37 Tex.Crim. Rep.. No exception was taken to this charge, and our attention is called to it for the first time on motion for rehearing. The case was tried before the new law on the subject of charges went into effect. We hold that the charge was erroneous. The motion for rehearing is granted, the judgment reversed, and the cause remanded.
Motion granted. Judgment reversed and remanded.