Tracy v. State , 111 Tex. Crim. 160 ( 1928 )

Conviction for burglary; punishment, three years in the penitentiary.

A chicken house belonging to a Mr. Derryberry was burglarized at night. Said house was locked and was entered by some one cutting the chicken wire which formed a part of the wall. Alarm was given and parties were heard running through a nearby pasture. Several sacks containing Mr. Derryberry's chickens were found near a fence. In a road not far from the fence was a truck which was admitted to belong to appellant. Appellant was seen in the neighborhood the next morning hatless and coatless. A coat identified as that of appellant was found, also a cap. Appellant's shoes were taken to the place and fitted into tracks which appeared to be leaving the chicken house and going toward the truck. We deem the facts amply sufficient.

There are two bills of exception, one of which sets out testimony of a witness to the effect that he heard two men running away from the direction of Mr. Derryberry's chicken house through a pasture and that he presently discovered a man lying by a fence and that it was one Overturf, who testified in this case that he and appellant committed the burglary. This witness further said that he found several sacks of chickens not far away. Said bill further complains of the admission of certain statements of this witness regarding tracks. In view of the fact that the bill of exceptions contains much recital of facts clearly admissible, and that no separate complaint is made of the testimony of this witness regarding tracks, we are of opinion that the bill manifests no error. Dixon v. State,91 Tex. Crim. 217.

Bill of exceptions No. 2 set out complaint of the admission of the testimony of the sheriff who said he took appellant's shoes and fitted them in tracks near the scene of the burglary and that they fitted exactly. The admission of this testimony was not error. Walker v. State, 7 Texas Crim. App. 264.

No error appearing in record, the judgment is affirmed.

Affirmed.