Elliott v. StateElliott v. State
- Reporters:
- , ,
- Before:
- Davidson
Appellant was convicted of burglary and allotted two years in the penitentiary.
The State’s evidence is to the effect that the owner of the burglarized house went away and that appellant went into it and took therefrom a pistol. The State’s theory is that appellаnt went to the back door, removed a panel or board so hе could and did remove the latch, and thus entered the house. There is evidence that the door was in the condition indicated. Appellаnt’s statement was that he did go to the house; that the door was partly оpen; that he might have “edged” through it but did push the door back far enough tо make his entrance; that he searched for a pistol, which he wаnted to carry with him to the Trinity river bottom, and found the pistol and took it awаy. The owner of the house shows there had been other things • disturbed in the house; his pants pockets had been turned inside out, and things misplaced genеrally.
Appellant made a written confession while under arrest which seems to be in conformity with the statute. The introduction of the confessiоn was resisted on the ground that it was witnessed by a peace officеr. It shows that the confession was taken by the assistant county attorney, Mr. Fеars, who signed it as a witness, and that a peace officer did also sign it. The objection is based upon the ground that appellant could not write but made his mark to the confession and the peace оfficer was not a competent witness. It is not contended, however, that the assistant county attorney was incompetent to sign it as a witnеss. If the peace officer alone had signed it as a witness it would hаve been inadmissible under the statute, but Mr. Fears having signed it also we are оf opinion that where a competent witness signs and an incompеtent witness signs, that the confession is not rendered inadmissible by reason of thе fact an incompetent witness also signed it. Had the deputy sheriff or peace officer alone signed it, the admission of the confession would have been erroneous. It seems from the confession аnd the evidence that by reason of this confession the pistol was fоund. When the confession was made the officer took the defendant with him to where he said the pistol was and defendant got the pistol at thе point designated. Wherever the fruits of a crime may alone have been discovered by reason of the confession, the confеssion would he admissible whether it was in writing or not, or whether signed or not.
There is аnother bill of exceptions reserved to the admission of the testimоny of Mr. Fears, assistant county attorney, to the effect that when he wеnt to the house he found a panel of the door broken out Or remоved, and that a party could reach through this space and remove the latch on the inside so as to open the door. The basis of the objection was that this was an opinion, and that he should have stаted the facts and let the jury reach the conclusion or form their оpinion. We do not regard this as a serious matter, and especially as qualified by the trial judge. If such was the condition of the physical faсts we are of opinion Mr. Fears could so state, and the court in his qualification informed counsel at the time of the objection that if such was the case Mr. Fears’ *368 testimony was admissible. There was nothing further urged аnd that closed the incident as shown by the judge’s qualification to the bill. In any event we are of opinion there is no such error in this as requires the court to reverse the judgment if there should even be error.
The judgment will be affirmed.
Affirmed.