289 S.W. 684 | Tex. Crim. App. | 1926
Lead Opinion
The appellant was convicted in the District Court of McLennan County for the offense of burglary, and his punishment assessed at two years in the penitentiary.
The record discloses that a Hudson automobile belonging to E. R. Smith was in the possession of John T. Kelly in the city of Waco for repairs, and that on or about the night of February 17, 1925, Kelly's place of business was burglarized and said automobile stolen therefrom, same being afterwards found in a field about fourteen miles out of Houston, near the Houston and Waco road. When found, the automobile had only one casing on it, the three other casings and the spare casing having been stolen, in connection with other parts thereof. The owner, Smith, had offered a reward for the recovery of said automobile, and the appellant went to the sheriff's office at Waco and inquired if said car had been located and if there was still a reward thereon, stating that he knew where the car was located and *576 would reveal the location thereof to the owner and the officers if they would pay to him said reward. On the following morning the appellant, accompanied by Smith and Kelly, went to Houston for the purpose of showing them the location of said car, and while en route described to them said location in detail and offered to wager and bet that the car had one casing on it. Upon arriving at the point described by the appellant, he pointed to the field where the car had been setting and to the house in close proximity thereto. However, the sheriff of Harris County had located said car and had moved it from the field up to the house for protection.
Fred Behringer, a witness for the state, testified that on the night of the alleged offense he, together with the appellant and Frank Hardy, burglarized the business house of the said Kelly, stole the automobile in question, and then drove same to Houston, where they attempted to sell it, but failing to do so, they stole a Ford and then drove both cars about fourteen miles out of Houston, on the Houston and Waco road, stripped the Hudson of the missing parts, and left it in the field and at the place described by the appellant. After this was done, all three men started for Waco in the Ford, and on the way the appellant abandoned them and they saw no more of him until after they reached Waco.
It was the contention of the appellant, although he failed to testify in his own behalf, that he knew nothing of the burglary, but that the said Behringer and Hardy had stolen some of his clothing, and that he had learned of their leaving Waco for Houston and followed them to the latter place, where he saw them in possession of the Hudson automobile in question.
There are five bills of exception in the record raising several questions as to the sufficiency of the charge of the court, but the only question raised which we feel called upon to discuss in this opinion is the sufficiency of the evidence to warrant this conviction. It is the contention of the appellant that there is no evidence tending to connect him with the burglary in question, and that the evidence as a whole is insufficient to warrant his conviction. We are unable to agree with this contention. In Branch's Ann. P. C., Sec. 2346, it is stated: "With the exception that the state must prove that a burglary was committed by someone, the rules as to possession of property recently stolen and explanation thereof which are applicable in theft cases apply also in burglary cases," citing Ross v. State, 16 Tex.Crim. App. 559; Brown v. State,
Finding no reversible errors in the record, we are of the opinion that the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
Since the filing of his motion for rehearing, appellant has filed a written application, duly verified, requesting the withdrawal of said motion. The application is granted, and it is ordered that mandate issue upon the original hearing in which the judgment of the trial court was affirmed.
Motion withdrawn. *578