Davis v. State , 101 Tex. Crim. 352 ( 1925 )

Appellant was convicted in the district court of Franklin county of burglary, and his punishment fixed at two years in the penitentiary.

The State's theory is that appellant had picking cotton for him one Rozier and Moore, paying them one dollar per hundred pounds and that he proposed to them that if they would get other cotton for him out of the pens or fields of other people, that he would pay them one dollar per hundred for such illegally gotten cotton, and that upon their agreement he took them in his car and drove around the country until they came to the field in which was the alleged burglarized cotton pen, and that he waited in his car in the road while they went to the pen, burglarized it and brought back to him cotton stolen by them, which was later mingled with other seed cotton belonging to appellant and appropriated by him.

Appellant asked for a change of venue upon the calling of the case. The basis of his application was that there existed in Franklin county such prejudice against him as that in the opinion of the compurgators a fair and impartial trial could not be had in said county. The means of knowledge of his compurgators being properly challenged by the State in a traverse of the motion in which it was averred also that a jury unprejudiced could easily be obtained in said county, the court heard evidence and refused the application. On the issue thus joined each side brought forward eleven witnesses, and in order that the correctness of our view may appear, we set out briefly the testimony of the witnesses for appellant.

Mr. Cowan on direct examination doubted if a fair jury could be obtained in this case, but on cross-examination said he thought by following the legal methods it could be gotten. Tom Holder said he based his opinion that it would be difficult to get a fair jury on what he had heard around the town of Mt. Vernon. Asked as to a number of communities in the county outside of Mt. Vernon, he said he knew nothing of the sentiment of such parts of the county toward appellant. Tinker said he "didn't hardly know whether appellant could get a fair trial in the county", but that a jury might be gotten away from Mt. Vernon which would give him a fair trial. Carson said he could not recall any place where he had heard appellant discussed except in Mt. Vernon. He said he had lost confidence in the jury system but knew of no better way to conduct trials. He testified that he had heard appellant discussed "a good deal", but further said that "You could pick plenty of men in this county who would make fair jurors . . . the greater per cent of the jurors if they were asked would say that they held prejudice and would thereby disqualify themselves." Rees said, "I can't say that I don't believe defendant can't get a fair trial in Franklin county. I guess there are lots of good men in Franklin county that have never heard of Thurman Davis." C. T. Holder said he had heard appellant discussed in his neighborhood, and a little in Mt. Vernon, but could have no opinion as to how people felt anywhere in the county except in the community in which he lived. Burns said he could not say appellant could not get a fair trial in the county, and on redirect examination said he thought he could get that character of trial. Stephenson said he thought by asking the proper questions it would be easy enough to get a jury who would give appellant a fair trial. Ezzell said he was on a jury which had tried appellant in a liquor case about a year before and had given him a suspended sentence. That he knew of no prejudice against appellant. Liles was also on the jury just mentioned and believed appellant could get a fair and impartial trial in Franklin county. McBrayer was also on said jury and it seems to him appellant ought to be able to get a fair trial in the county. The State put eleven witnesses on the stand who disclosed extensive acquaintance in the county, all of whom averred their belief that appellant could get a fair and impartial trial in the county. We entertain no doubt as to the correctness of the overruling of the application. We have not tried to set out all of the testimony of appellant's witnesses, but have merely reproduced such part of their statements as manifests the fact that by them appellant did not establish the existence of prejudice against him. Appellant had been tried in a liquor case, as above mentioned, convicted and given a suspended sentence, and the judge at the time criticised the jurors for such supension, but this does not seem to us to be very strong testimony establishing prejudice against appellant. It seems also that he had been discussed to some extent in connection with other criminal matters, the kind and character of none of which are detailed. Some of the witnesses said they thought there was prejudice against him but that it was not such as would invade the jury box. Some thought otherwise. If appellant had ever been convicted or legally charged with other crimes or offenses than the liquor case mentioned, we fail to find it in testimony.

The State relied chiefly for conviction on accomplice witnesses Moore and Rozier, who testified that they were picking cotton for appellant; that he was paying them a dollar a hundred for picking, and that he proposed in substance to pay them the same amount for all cotton they would steal for him, and that so purposing, on the night in question they got in appellant's car with him and hailed forth questing for cotton which might be purloined; that they found none in the first field visited by the party, but a little later went to Mr. Irby's field and appellant told them to go see if there was any there and that they went and found the pen in question, and came back and told him about it, and he told them to go and get the cotton; that they went back to the pen, removed the plank cover and carried back to appellant, who was waiting at a point some 250 yards from the pen, two sacks of the stolen cotton which they all then carried to appellant's field and mingled it with cotton belonging to him; that appellant then wanted them to go back to Irby's field and get the remainder of the cotton in the pen but they refused. By several bills of exception directed at the testimony of each of said witnesses appellant objects to their testimony that they went to another field searching for cotton before they got to that of Irby's, and also that after they had abstracted a part of Mr. Irby's cotton, appellant wanted them to go back and get the remainder. We confess ourselves at a loss to understand just how this was not all part of the res gestae of this transaction. Certainly it was not proof of a separate theft or burglary. If parties conspire to commit a crime, what was said and done in pursuance of said conspiracy while engaged in the criminal enterprise, seems always admissible. The object of the conspiracy testified to by the accomplices was to criminally obtain the cotton of appellant's neighbors. The burglary of Mr. Irby's pen was seemingly a necessary incident to the criminal enterprise and all that was said and done by appellant in the execution of the original purpose would seem to be properly received in testimony. We find nothing in the cases cited in the able brief of appellant from Long v. State, 39 Tex.Crim. Rep., and Hunt v. State, 229 S.W. Rep. 873, in any way combating our views here expressed.

When Rozier was offered by the State appellant objected that he was an unpardoned convict. The State then produced a pardon issued to Rozier. Still objecting, appellant called attention to the fact that the judgment of conviction against Rozier was entered at the February, 1921, term of the District court of Franklin county, and that the offered pardon recited therein that Rozier was pardoned for an offense committed at the December, 1921 term of said county, and appellant insisted that this was therefore a pardon for a different offense and conviction from that relied upon as barring the testimony. The objection was overruled and the bill then taken by appellant is qualified by the statement of the Honorable trial judge to the effect that he was the presiding judge at the trial and conviction of Rozier at the February, 1921, term of the district court of Franklin county, and that there was no December, 1921, term of said court. The judge of a court may append to a bill of exceptions matters of which he has judicial knowledge, and such appears to be the nature of the matters stated in this qualification here. So considered, it is clear that the seeming variance in the issuance of the pardon was fully explained, and the witness was properly permitted to testify.

Upon the ground that there was not sufficient corroboration of the accomplice witnesses, appellant sought an instructed verdict, the refusal of which is complained of in bill of exceptions No. 7. With reference to corroborating testimony, we observe that the sheriff testified that on the morning after the alleged burglary he went out to the Irby place and observed men's tracks leading from the road to the pen where the Irby cotton had been stolen, which was about 150 or 200 yards west of the road; that he could see car tracks where the car had been driven about 100 yards past the pen and apparently stopped; that at the point where witness thought the car had stopped in the road were tracks of human beings, some of the tracks being on each side and some in the middle of the road. These tracks left the road and went to the cotton pen in Mr. Irby's field and then went from the pen back to the road about the place where the witness thought the car had stopped. Rozier and Moore were found picking cotton in appellant's field the morning after the alleged burglary and were taken by the officers to the Irby field and their feet fitted in tracks there found and they corresponded. Mr. Campbell, the sheriff, said that these tracks appeared to go twice from the point in the road where he thought the car stopped, up to the cotton pen and back. The two accomplice witnesses testified that when the car stopped near Mr. Irby's field, they went together out in the field and located the pen with the cotton in it and came back to the car and told appellant what they had found, and he then told them to go back and get the cotton. Mr. Campbell said the two front casings on appellant's car were just alike and that he had never seen two casings on the same car like those before. One of the rear casings on appellant's car was a Goodyear and witness said he was familiar with the kind of tires defendant had on his car at that time, which corresponded with the car tracks found near the field of Irby. Witness said he followed the car tracks from the point near the Irby field where he thought the car had stopped, down to a gin where the tracks turned to the right and went through and struck the Purley road about 150 yards from the home of one Carl Davis, and that said tracks came up the Purley road to appellant's field and on past the cross fence between Carl Davis and appellant to a point where it appeared the car had stopped again, and that they then followed the tracks found to correspond to the feet of Rozier and Moore from the place where the car had stopped through appellant's field to where there had been a cotton pile. There had been a little sprinkle of rain the night before and the car tracks showed up plainly. Mr. Gamble testified that he lived about 250 yards from the Irby cotton field where the alleged burglary took place and that between two and three o'clock on the night of the alleged burglary he went out doors from his home to attend a call of nature and saw a car parked in the road about 200 yards above his house, and in about five or ten minutes it started and went on; it had no lights and witness saw something in the back of the car that looked like a bundle of bedding; the car passed in about 40 yards of the witness. Carl Davis testified that his place joined appellant's on the south; that he was at home the night the Irby cotton was taken; that he heard a car pass his house going north about three o'clock in the morning and that he judged the car to be a Ford. Robert Arrington, testified that on the night in question he was in the town of Mt. Vernon and around nine o'clock went with Bill Majors, Hiram Majors and Thurman Davis out to the place of the latter where they engaged in a card game until about two o'clock that night. That he saw Rozier and Moore in Mt. Vernon before they left, and saw appellant talking to said two men; after he talked to them he and the other parties named got in a car and went out to appellant's place. In about thirty or forty minutes Rozier and Moore came into the house where they were playing and sat around for a few minutes and went on into the other room. There were two rooms to the house. This witness testified that appellant had talked to him about his testimony and had said that, "We could have us going to Sulphur Springs and leave the poker game out." On cross-examination witness said that appellant told him he would want him as a witness to show where he was that night, and he said, "We could have us going to Sulphur Springs and leave out the poker game." When they left appellant's house the night of the burglary he brought them to town in his car. He did not know where appellant went after he let them out of his car. He heard no noise as of any one leaving the house in which they were playing poker or as of the starting of a car while they were at the house. When he came out of the house after the card game was over he did not notice the car having been moved. Bill Majors testified about going out to appellant's place in his car and playing poker, and about Moore and Rozier coming out to the place, sitting around awhile and then going into an adjoining room. He also said they left the place about two o'clock. He said that appellant had talked to him about his testimony and had suggested that something could be said about a trip to Sulphur Springs, but said appellant did not suggest to him that he swear they went to Sulphur Springs. It was in testimony that on the morning following the alleged burglary appellant took Rozier in his car to carry him apparently to the field to pick cotton. Appellant's father testified that on the morning after the alleged burglary appellant and a negro came to get his wagon to be used in hauling cotton. He said it was tolerably early that morning. This witness said that he saw the wagon when it was brought back with cotton on it and that it appeared to have eight or nine hundred pounds of cotton on it. In its rebuttal the State introduced witness Dewett who testified that he lived on appellant's place, and that on the Saturday before the alleged burglary on Monday night he was over in the field of appellant looking at his cotton pile and estimated that there were not over 300 pounds in the pile. This witness said that during Monday, Rozier and Moore picked there in the field and that one of them told him that they picked something over 100 pounds. He said the wagon was brought out Tuesday morning and the cotton in appellant's cotton pile was carried away, and that on Wednesday he asked appellant how much cotton he had on his wagon and he said 980 pounds. Mr. Irby testified that 368 pounds of cotton were taken from his pen the night of the burglary. We regret that we are unable to agree with appellant's contention that there is no testimony aside from that of the accomplices tending to connect him with the commission of the alleged offense. We have not undertaken to state all the facts which in our opinion justify our conclusion that there is enough corroborative testimony in the record.

It was not error for the court to tell the jury that the cotton pen was a house within the meaning of our burglary statute. Willis v. State, 33 Tex.Crim. Rep.; nor do we agree with the objection that such structure was not a house. It was built of posts or logs about four feet high on one side and three on the other, was floored and covered with planks, and was used as a receptacle for the storage of cotton. Appellant cites Clark v. State, 120 S.W., Rep. 892, and Williamson v. State, 39 Tex.Crim. Rep., in one of which we held a show-case not to be a house, and in the other we held a header box to be not a house. In each case the structure under discussion seems to have been portable and not to have been considered or used as a house. In the Williamson case Judge Davidson says:

"It is true that it had four sides, and was covered over, but it was nevertheless a box, and not a house. All boxes which contain goods, shoes, groceries, etc., for shipment would be houses if this box is held to be one. The evidence excludes the idea of permanency of location or fixedness of place in regard to this house. It was portable, and made for the express purpose of being carried from place to place for the purpose of holding the heads cut from grain, or of grain after it was threshed; and was not used, or intended to be used, in any way or for any purpose connected with a habitation, or other purposes for which houses are ordinarily used. Some of our cases have gone to a considerable extent in holding certain character of structures houses, but in all such it will be found that they were fixtures. See Anderson v. State, 17 Tex.Crim. App. 306; Bigham v. State, 31 Tex.Crim. Rep.; Willis v. State, 33 Tex.Crim. Rep.. We should not be understood as holding that it is absolutely necessary that the structure, in order to be considered a house, should be fixed to the soil, or that because it is portable it would not be considered a house. But we do hold, under the proof in this case, that this was not a house, but a mere box, constituting a part of the outfit for the thresher.

In Barker v. State, 69 S.W., Rep. 515, we held a corn crib a house, and in Anderson v. State, 17 Tex.Crim. App. 305, an office picketed off the corner of a hardware store was held a house, and in Bigham v. State, 31 Tex.Crim. Rep., we held a sheriff's office and vault which was entered, to be a house. In Douglas v. State, 225 S.W. Rep. 536, we held a space cut off in a store by walls partly of wire and partly of beaver board, to be a house. So in James v. State, 63 Tex.Crim. Rep., a large refrigerator used for holding and storing meats was held a house. As far as we are able to see, the cotton pen in question meets every element of a house as prescribed in our statutes and decisions.

We find no fault with the submission of the law applicable to principals. The form of the submission of such doctrine is in line with the recognized charges and we have no doubt of the applicability to the facts.

The contention that the evidence does not support the proposition that appellant was keeping watch or acting together with Moore and Rozier in the alleged burglary, but that if acting with them at all it was merely in the commission of a misdemeanor theft, is without support. If appellant went out with said parties to commit theft and sat in the car and kept watch while they went to a pen and located cotton and came back and told him of its presence and he instructed them to go get it and bring it back and this was done, we would have no doubt of his guilt of burglary. This is the testimony of the witnesses, and if the evidence corroborates them as to appellant's complicity in the theft, we would be constrained to hold that it corroborates them in his complicity in the burglary.

Several bills of exception complain of the refusal of special charges, each of which has been carefully examined by us and in each of which appear erroneous statements of the legal principles to the facts, which fully justified their refusal by the learned trial judge.

We have given to each contention of appellant our careful consideration, and have examined with interest the able brief prepared by his counsel but find ourselves unable to agree with the positions taken, and being satisfied that he has had a fair trial, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.