Carpenter v. State , 108 Tex. Crim. 291 ( 1927 )

The offense is burglary, the punishment five years' confinement in the penitentiary.

By bill of exception No. 3 appellant complains of the action of the trial court in permitting the County Attorney, over his objection, to ask appellant if he had not been indicted for murder. The court qualified appellant's bill by stating that "after laying the proper predicate and it appearing that the matter inquired about was not too remote, the County Attorney was permitted to ask the defendant the question complained of in said bill." In a criminal case the defendant or any other witness, if the impeaching testimony is not too remote, may be impeached by the adverse party by proving by the witness on cross-examination that he had been indicted or convicted or that he was then under indictment for a felony or for a misdemeanor imputing moral turpitude. Branch's Annotated Penal Code, Sec. 167; Robinson v. State, 156 S.W. 212. It follows that no error is manifested by the bill.

By bill of exception No. 4 appellant complains of the action of the court in overruling his objection to paragraph 4 of the court's charge, wherein the court instructed the jury on the converse of the law of principals. Appellant's specific objection to the charge was that it placed a greater burden on him than was contemplated by law. An inspection of the paragraph complained of discloses that it is not subject to the criticism made by appellant. In applying the converse of the law of principals to the facts, the court instructed the jury, in substance, that they must believe from the evidence beyond a reasonable doubt that appellant was present at the time of the commission of the offense, if any, and knowing the unlawful intent of the principal, aided him by acts or encouraged him by words or gestures in the commission of the offense. We are unable to agree with appellant that the charge complained of placed a greater burden on him than the law authorized.

By bill of exception No. 5 appellant complains of the action of the court in instructing the jury, in substance, that intoxication or temporary insanity produced by the voluntary recent use of ardent spirits, did not constitute an excuse for the commission of crime, but that the evidence of temporary insanity produced by such recent use of ardent spirits might be considered in mitigation of the penalty. We are unable to understand how appellant could have been prejudiced by the giving of this instruction. Appellant testified that on the day of the burglary he had been drinking liquor freely all day and that he drank to the extent that he became unconscious of what was going on. We are unable to agree with appellant that prejudicial error is manifested by his bill of exception.

By bill of exception No. 7 appellant complains of the charge on accomplice testimony, it being asserted by appellant that the court assumed in his charge that the testimony of the accomplice made out a case against him, and further that the court instructed the jury that they must believe that the testimony of the accomplice connected the defendant with the offense charged, when he should have embodied in his charge an instruction that the jury must believe that the testimony of the accomplice showed that the defendant was guilty as charged. The charge complained of conforms to the charge approved by this court in the case of Oates v. State, 149 S.W. 1194, except that the objectionable word "alone" condemned by this court in Abbott v. State, 250 S.W. 188, has been omitted from the present charge. In the Oates case, as in the instant case, the accomplice testified to facts which connected Oates with the offense, but did not testify to facts which constituted a complete offense. As in the present case, the jury were instructed in the Oates case, in the concluding words of the charge on accomplice testimony, in substance, that they must believe from all of the testimony, beyond a reasonable doubt, that the defendant was guilty as charged before they could convict him. See Henderson v. State, 260 S.W. 868. The charge in the instant case conforms to the suggestions made in the case of Standfield v. State, 208 S.W. 532, and under the facts clearly presents the law of accomplice testimony.

The state's theory, as disclosed by the testimony, was this: Appellant and Bill Murphy went together in a car to the filling station of B. M. Hays some time between 9:30 o'clock on the night of October 18th, and 3 o'clock the following morning; burglarized said filling station, and took therefrom certain automobile casings and tubes. The tubes and casings were taken by appellant and Murphy to Doug Johnson's home, where they were unloaded by the two and placed in the house. Appellant carried an officer to Doug Johnson's house, where the stolen property was recovered. Appellant stated to the officer that he was drunk and sat in the car while Murphy went into the filling station and got the casings and tubes. In connection with his statement to the officer, appellant asked the officer if he didn't believe that if he would testify that he was drunk at the time the burglary was committed, and that Murphy went into the filling station and stole the casings and tubes, that he could defeat the state's case.

Testifying in his own behalf, appellant stated that he had been drinking whiskey during the day of alleged offense and that in the afternoon he met up with Bill Murphy and Jeff Morgan and drank with them; that he met these parties about seven o'clock, and that after they had been drinking some time they went to Mart, reaching there some time in the late night, and that at the time they reached Mart he, appellant, was drunk and had no clear recollection of what was going on; that he and his companions drank whiskey during the time they were in Mart, and that he drank so much that he became unconscious as to what was going on; that he didn't remember anything after that until he and Murphy were close to Doug Johnson's place; that he knew he didn't go into the filling station because he was drunk and couldn't get out of the car and was too far gone and unconscious.

Appellant requested the court, in substance, to affirmatively charge the jury that if they had a reasonable doubt that he was drunk and unconscious at the time of the burglary and took no part in its commission they would acquit him. The court refused to submit such issue to the jury, for the reason that he had submitted in his main charge an instruction in accordance with the provisions of Art. 36, Penal Code, covering the law of temporary insanity produced by the voluntary recent use of ardent spirits.

If the defensive theory, if true, would defeat the state's case, as alleged, and the evidence raises such theory in an affirmative way, it is incumbent on the court to submit an affirmative charge covering the issue. Escobedo v. State,225 S.W. 377. It is to be noted that appellant was able to lead the officer to the stolen property, and that he had sufficient recollection of the transaction, out of which the burglary grew, to describe to the officer the manner in which the burglary was effected. It was the state's theory that appellant and Murphy were principals in the commission of the offense. Appellant's testimony to the effect that he did not go into the filling station because he was drunk and could not get out of the car, if true, would not defeat the state's case as alleged; for if appellant, knowing the unlawful intent of his companion, aided him by acts or encouraged him by words or gestures in committing the offense, or kept watch so as to prevent interruption, he was guilty as a principal. Art. 66, P. C. When considered in connection with the fact that appellant was able to reveal the location of the stolen property, appellant's testimony is not of such cogency as to raise the issue touching his want of physical and mental capacity to engage in the commission of the offense as a principal. See Lyles v. State, 239 S.W. 616.

Furthermore, it is noted that the court charged the jury as follows:

"But unless you do believe from the evidence beyond a reasonable doubt that the defendant, either alone or in connection with one Bill Murphy, as a principal, in the night time, on or about the 18th day of October, 1926, as alleged, in said state and county, by force or at an unusual place, did enter the house of B. M. Hays, as charged in the first count in the indictment, with the intent to commit the crime of theft, you will return a verdict of not guilty."

Finding no error, the judgment is affirmed.

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.