Daggett v. State , 39 Tex. Crim. 5 ( 1898 )

Appellant was convicted of burglary, and his punishment assessed at two years confinement in the penitentiary, and he prosecutes this appeal.

Appellant claims that there is a variance between the allegations of the indictment and the proof as to the ownership of the alleged burglarized house. The proof shows that the house entered was a chicken house, situated on the ranch of John Daggett, about seven or eight miles from his residence; that Ed Jahn was employed by him at a salary of $18 per month; that, among other things he was employed to look after, were a number of fowls, consisting of turkeys and chickens, which the said John Daggett bought and placed on the premises, with the understanding that Jahn's wife was to get a part of the increase. The possession of Jahn, under the testimony, was a mere custody, as that of a servant. The allegation of the indictment was correct. See Graves v. State (Texas Crim. App.), 42 S.W. Rep., 300. These observations apply in regard to the ownership of the house, and, in addition thereto, if there was a joint ownership in the fowls, then the property could be alleged in either; but there was not a joint ownership in these fowls, because Mrs. Jahn could only have a part of the increase.

Appellant also contends that the confessions of the appellant were inadmissible, because he was not properly warned. We think that the testimony shows that he was properly warned. Not only this, but the confessions were admissible on another ground. The fruits of the crime were found in pursuance of the confessions of the appellant. True, the property was not found in the exact place as stated by the appellant, but evidently it had been there, and was left there by the appellant, because the smokehouse contained a lot of feathers, identified as belonging to the chickens and turkeys taken. They had doubtless been moved from there a short distance by others after the arrest of the appellant, but they were traced from the smokehouse to a thicket near by, on the premises of Burns, where appellant stated they would be found. But for this statement, that they were on Burns' premises, there is no suggestion that search would have been made there by the officers for the lost property.

There is no error in the court rereading the charge as corrected by him. There was no occasion to give the special charge requested, as all the facts in the case had been properly covered by the court's charge. As applied to the facts of this case, the special charge given by the court as to the definition of actual care, control and management was not calculated to injure appellant. Nor was there any error in the definition of the court of a breaking — in defining the same as applied to a daytime entry. The character of force is the same. The judgment is affirmed.

Affirmed.

MOTION FOR REHEARING. O.S. Lattimore, for appellant. — This court should have reversed this case because the court below gave in his charge to the jury that which was fundamental error, and a charge on the weight of the evidence, as shown by defendant's first assignment of errors, no mention of which is made in this court's findings.

The giving of this charge was fundamental error, even though the question be first raised by defendant's assignment of errors. See Isham. v. State, 41. S.W. Rep., 622.

2. This court erred in holding that the charge of the court below as to what would be actual care, control, and management as shown by defendant's bill of exceptions number 5 and his second assignment of errors.

Wherefore the court is respectfully asked to grant to defendant a rehearing, and to reverse this cause and remand same for a new trial.

ON MOTION FOR REHEARING.