38 S.W.2d 331 | Tex. Crim. App. | 1931
Conviction is for burglary; punishment being two years in the penitentiary.
The house claimed to have been burglarized was alleged to have been controlled by W. T. Fussell, and the property therein to have belonged to him.
The point is made here that the record shows no proof as to want of consent of Fussell, either as to entry of the house or to the taking of property therefrom. We have examined the statement of facts carefully in regard to this matter. Although Fussell testified upon the trial *79 it does not appear that he was ever asked regarding his want of consent, either to the entering of the house or the taking of the property.
In Wisdom's case, 42 Tex.Crim. Rep.,
It is recognized in the opinion that under certain conditions want of consent may be proved by circumstantial evidence but that this is not permissible where the witness who could give direct testimony on the point is present and testifies. The Wisdom case was followed in Caddell v. State,
It was claimed that the house in question had been broken into about the last of March. At that time only a small table was missed. Some six months later, with appellant's permission, his house was searched. A small table, two old hats and some postcards which had been received by members of the Fussell family, were found. Appellant at that time accounted for his possession of the property by explaining that he had bought it from Mr. R. N. Dixon. We are asked to hold as a matter of law that proof of possession of the property six months after the burglary was too remote for the jury to base thereon an inference that appellant was the taker. Our decisions on the subject are not harmonious as may be discovered from an examination of the reported cases. The character of the property will under the circumstances of each *80 particular case necessarily have some bearing on the question. We are not inclined to agree with appellant in his position on this point.
We suggest that in view of appellant's claim that he bought the property from Mr. Dixon it would be much more satisfactory to have
Mr. Dixon's version of the matter or some explanation of why it was not forthcoming.
Upon the point first discussed the judgment must be reversed and the cause remanded, and it is so ordered.
Reversed and remanded.