Holmes v. State , 136 Tex. Crim. 26 ( 1938 )

The offense is theft; the punishment, confinement in the penitentiary for two years.

The testimony adduced by the State was sufficient to warrant the conclusion of the jury that appellant stole a fur coat from Mrs. Horace Holley of the approximate value of $275.00.

Testifying in her own behalf, appellant denied taking the coat.

Appellant sought a continuance because of the absence of the witness Edd Claybourn. The bill of exception is qualified as follows: "The indictment was returned in this case June 17, 1937, and defendant was arrested prior to June 23, 1937, and defendant did not procure subpoenas for the witness until November 12, 1937, five days before the date of trial." It does not appear that the witness had been served. Manifestly, appellant did not use the diligence required by law.

Appellant was employed by Lee White in the capacity of housekeeper, he paying her five dollars a week for her services. Officers testified that they found the stolen coat upon searching White's home. Appellant objected to all of the testimony touching the result of the search on the ground that it was not shown that the officers operated under a legal search warrant. The objection was not well taken. We quote from 56 Corpus Juris 1177, as follows: "While, of course under general rules above stated, a master or employer may, his servant or employee may not complain of an unauthorized search of the premises or possessions of the master or employer, where there has been no invasion of his own private rights." In support of the text several authorities are cited, among them being Ward v. State, 269 P. 389; and McFarland v. State,7 S.W.2d 955. It is observed that the record fails to show that appellant's own private room was invaded by the officers.

Several bills of exception relate to alleged misconduct on the part of the district attorney. An examination of said bills leads us to the conclusion that they fail to reflect reversible error.

The judgment is affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.