Coates v. State , 31 Tex. Crim. 257 ( 1892 )

This appeal is prosecuted from a conviction of burglary. In separate counts the indictment charges burglary at night and in daytime. The court's charge limited the consideration of the jury to the count alleging the burglary at night.

The evidence adduced shows the offense to have been committed at night, and excludes the idea that the house was entered in the daytime. It was not error for the court to so limit the jury. This was the case as made by the facts. The court might have appropriately required a dismissal of the second count, or have pointedly instructed the jury to disregard said count, or charge them to acquit appellant of the charge therein contained. Parks v. The State, 29 Texas Ct. App. 597[29 Tex. Crim. 597]. Appellant attacks the indictment for the first time in this court, and urges its insufficiency to charge the offense of burglary. A similar indictment was sustained in Williams' case, 24 Texas Court of Appeals 69[24 Tex. Crim. 69], and we think correctly.

Appellant sought a postponement of his cause for the testimony of Hughes and Rathruell, by whom he expected to prove that about the time of the burglary, he "was possessed of large means, and in good financial condition," and that also about said time he "had received from said witnesses different and large sums of money." Concede the truth of these facts, yet they did not and do not antagonize a single criminative fact in the case, nor did they tend to mitigate the offense, or to excuse or justify the act. In order to be material, the absent testimony must tend to disprove, render improbable, or cast some suspicion upon the evidence relied on for a conviction. The evidence expected to be shown by the absent witnesses was not material, under the facts of this case. Defendant entered the house to steal beer, not money.

The indictment alleged ownership in J.P. Lynn. The evidence disclosed the ownership, as well as the actual care, control, and management, to be in said Lynn and one Erwin. They were partners. The court, in appropriate terms, charged the jury that the ownership was property averred, and proof of such averment, would be sufficient to sustain the indictment in this respect. This was excepted to by appellant, and an instruction requested by him, which was refused, to the effect, that if Lynn and Erwin were joint owners, it was incumbent on the State to prove want of consent of both parties; otherwise the defendant was entitled to an acquittal. Our statute provides, that "where property is owned in common or jointly by two or more persons, the ownership may be alleged to be in all or either of them." Code Crim. Proc., art. 426. Where two or more parties are in the actual care, control, and management of property alleged to have been stolen, the indictment may allege ownership in all or either of them, and the State will only be required to prove such allegation. It is not incumbent on the State to prove want of consent of nonalleged owners.

The court charged also, that "where property is owned jointly or in common by two or more persons, the ownership may be alleged to be in all or in either of them; and proof of the allegations as made in the indictment is sufficient, in cases of theft, as to ownership of property alleged to have been stolen." This charge correctly states the law, and the exception reserved thereto was not well taken. Terry v. The State, 15 Texas Ct. App. 66[15 Tex. Crim. 66].

The evidence supports the verdict of the jury and the judgment of the court. Judgment affirmed.

Affirmed.

Judges all present and concurring.