Nolan Joseph HAINES, Appellant, v. The STATE of Texas, Appellee.
No. 37170.
Court of Criminal Appeals of Texas.
April 7, 1965.
Rehearing Denied May 19, 1965. Second Motion for Rehearing Denied June 16, 1965.
Leo Rubel testified that the appellant was the person from whom he purchased some steel beams for $177.
The evidence of the state further reveals that the steel beams extending between abutments of the bridge forming one of the spans were removed; that they were of the value of more than fifty dollars and were taken without the consent of those in charge and pоssession of said property.
Testifying in his own behalf, the appellant admitted taking the steel beams from the railroad bridge and his testimony was substantially the same as that of the state, except that he stated that M. D. Godman gave him permission to take the steel beams. He further testified that he thought the U. S. Corps of Engineers had possession of the property and that Godman appearеd to have and he believed he did have the authority to give him permission to take the steel beams, but he had been unable to locate him. In rebuttal the state offered proof that Godman was deceased.
For the first time, in his brief, the appellant cоntends that the indictment does not sufficiently describe the property alleged to have been stolen.
The indictment alleges that the appellant did “fraudulently take a railroad bridge span.”
The complaint as to the description of the propеrty alleged in the indictment is not of such nature as would require a reversal when raised for the first time in this court, on appeal.
It is cоntended that there is a variance between the indictment and the evidence, in that the indictment alleges the property bеlonged to J. M. Lowry, whereas the evidence reflects the owner‘s name to be John M. Lowrey. The variant names are idem sonans. Hence no error is presented. 1 Branch (2) 31, Sec. 39.
The evidence is sufficient to support the conviction and, no error appeаring, the judgment is affirmed.
Opinion approved by the Court.
S. F. Mafrige, Bill Hilford, Houston, for appellant.
BELCHER, Commissioner.
The conviction is for burglary with three prior convictions for non-capital offenses alleged for enhancement; the punishment, life imprisonment.
Officer Lewis testified that at approximately 7 P.M., in response to a call resulting from a flash on a burglar alarm system, he took his “canine partner,” a German Shepherd dog, to the indicated furniture store, which they entered after an employee of the аlarm system arrived and unlocked a door to the building; that after the dog—trained to use his sense of hearing and seeing—jumped in that direсtion, Officer Lewis saw a man in the cashier‘s booth. He further testified that after the appellant had been apprehended in the building, the appellant told him he had taken several transistor radios and electric mixers from the shelves and piled them on a bedspread on the floor; that the appellant next showed him how he had entered the building, pointing to the transom window, about ten feet high, through which he had entered and then dropped to the floor.
The manager of the furniture store testified that the store wаs closed at the time the alarm flashed, and that he did not give anyone his consent to break and enter the store and take аny property.
Jimmy B. Northrup, agent for the burglary alarm system, testified that he met Officer Lewis at the furniture store; that after entering the building he sаw the appellant, who said he had been taking the merchandise and piling it upon the floor.
Proof was offered, in the instant case, of the prior convictions as alleged and the
The appellant did not testify, but recalled Officer Lewis, who testified that he did not examine the transom window or the merchandise on the floor of the store for fingerprints but that fingerprints were a рositive manner of identification.
The court charged the jury upon the law as applicable to circumstantial evidence.
Appellant contends that the trial court erred in permitting the state to read the enhancement allegations and mаke proof thereof before the jury on the ground that such procedure deprived him of due process and was unconstitutiоnal. This contention was rejected in Crocker v. State, Tex.Cr.App., 385 S.W.2d 392. In the absence of a stipulation resolving the issues of the prior convictions, proоf of them as alleged in the indictment was proper. Pitcock v. State, Tex. Cr.App., 367 S.W.2d 864; Ex Parte Reyes, Tex. Cr.App., 383 S.W.2d 804.
The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.
Opinion approved by the Court.
ON APPELLANT‘S MOTION FOR REHEARING
WOODLEY, Judge.
It is well settled that
A re-examination of the statement of facts fails to disclose any evidence to sustain the allegation of the indictment that the offense for which appellant was сonvicted in Cause No. 75895 was committed after the judgment of conviction in Cause No. 65729, on January 25, 1952, or the judgment of conviction in Cause No. 62191 on December 19, 1949, became final.
Also no evidence is found to support the allegation of the indictment that the conviction in Cause No. 65729 on January 25, 1952, was for an offense committed after the conviction in Cause No. 62191 became final.
There is however ample evidence that appellant had been convicted of burglary in both such cases prior to the cоmmission of the burglary charged in the indictment.
It follows that the indictment, evidence and findings of the jury are sufficient to invoke the provisions оf
The judgment and sentence are reformed to providе for appellant‘s confinement in
As reformed, the judgment is affirmed and appellant‘s motion for rehearing on other grounds is overruled.
MORRISON, Judge.
I concur in the overruling of appellant‘s motion for rehearing and in the reformation of the judgment and sentence.