20 S.W. 547 | Tex. Crim. App. | 1892
Defendant and three others were jointly indicted for burglary and theft. The defendant was placed on trial, and convicted of burglary, and sentenced to two years in the penitentiary, from which judgment he appeals.
1. On June 2, 1891, the store of A. Lowenstein, in Dallas County, was burglarized, and a quantity of clothing and other articles taken. The burglary was effected by breaking the front window with a rock, and taking out the goods through the opening. On trial the defendant objected to Officer Kerby stating that Lowenstein identified the property taken from his store. Conceding that idenification is hearsay, still defendant shows no injury, for Lowenstein himself testified in person to the same fact.
2. There is no force in the second bill of exceptions taken to the court's refusal to charge the law applicable to accomplices' testimony. The witness *252 Spivey was in no sense an accomplice. There is no evidence of any fraudulent intent in his connection with the transaction.
3. The fourth bill of exceptions presents no reversible error. The jury found Trent and Hays guilty of burglary, and sentenced them to the reformatory; and when informed that defendant Trent could not be sent to the reformatory, they retired, and returned a verdict sending both to the penitentiary. A new trial was granted to defendant Hays, and overruled as to Trent.
4. As to the question of sufficiency of testimony, we think there is sufficient to sustain the verdict. Witness Spivey, a merchant, passed Lowenstein's, and saw the window broken in Lowenstein's store, and a vacant place from which goods were taken. In a short time after reaching his store, four negro boys, the defendant being one of them, came in with shirts, pants, and suspenders, which they offered for sale. He negotiated slowly, watching for an officer; but at length he bought the articles, and followed them up Main street, when he met an officer and described the boys to him, and they were arrested. Upon trial, the witness fully identified the defendant as being one of the four from whom he purchased the stolen articles. The judgment is affirmed.
Affirmed.
Judges all present and concurring.
