Hopkins v. State , 61 Tex. Crim. 590 ( 1911 )

By appellant's motion for rehearing herein, he urges that the evidence in the case shows, or tends to show that the house burglarized was the residence of the witness Montgomery, "occupied and used at the time of the commission of the offense by Mattie Montgomery, as her place of residence." He does not contend that the evidence is insufficient, under the second count, that the house burglarized was occupied by Mattie Montgomery, under articles 838-9, for the evidence clearly and without doubt establishes the guilt of the appellant under that count of the indictment. Article 845, Penal Code, fixes the penalty for burglary, under articles 838-9, at confinement in the penitentiary not less than two nor more than twelve years. Article 845a fixes the penalty for burglary under article 839a at imprisonment for any term not less than five years. It is not sufficient to justify this court to reverse to show that the testimony may have tended to show that the offense was under article 839a, when it also clearly shows that it was committed under articles 838-9. This was clearly to the advantage of the appellant and not to his disadvantage. As said by this court, through Judge Hurt, in the case of Thompson v. State, 37 Tex.Crim. Rep.:

"Appellant contends that the indictment charges that he bet at a game played with dice, commonly called ``craps,' not at a private residence, and that the entire testimony shows that the game at which he bet was a banking game, and not a game played between himself and some other person, and that consequently the indictment in this case is not sustained by the proof. The contention is that, as the proof showed that the game played with dice at which appellant bet was a banking game or table, therefore he could not be convicted for betting at a game played with dice, commonly known as ``craps;' that he should have been indicted for betting at a banking game or table. It is not questioned, and the record renders it conclusive, that appellant did bet at a game played with dice, to wit, craps. Now, the contention is that he should have been indicted and tried for betting at a banking game or table. This contention is not sound. Every fact charged in the indictment was proved in this case, that is, that he bet at a game played with dice, commonly known as ``craps,' not at a private residence. This is an offense, and made so by the express provisions of the statute. He will not be heard to complain that the State did not prosecute him for betting at a banking game or table. With this he has nothing to do, and no concern; for, if the State should attempt to prosecute him for betting at a banking game or table, he could interpose an acquittal or conviction as charged in this indictment. The State had the right to proceed against him for betting at the game played with dice, commonly called ``craps,' or the right to proceed against him for betting at a banking game or table. Having elected, the State is concluded." And also: "To condense: Whether a banking game or table or not, if he bets at a game played with dice, commonly called ``craps,' not at a private residence, he is guilty, and will not be heard to urge that he should have been indicted for betting at a banking game, if the proof suggests such. As stated before, it being for the same transaction, when he has been convicted or acquitted, he can set up former conviction or acquittal in bar of a prosecution for either as the case may be."

So, in this case, even though the evidence might have tended to show that the appellant was guilty under the third count in the indictment, it does not show that he was not guilty under the second count and the State, having elected under the second, is bound by its election to the disadvantage of the State and to the advantage of the appellant. Again, by article 723 of the Code of Criminal Procedure, it unquestionably appearing to this court that the error, if any, of the lower court was not calculated to injure the rights of the appellant, but inured to his advantage, there was no error by the lower court in the State electing to seek and secure the conviction under the second count. Article 723, Code Crim. Proc.; Thompson v. State, 37 Tex.Crim. Rep.; Martinez v. State,51 Tex. Crim. 584.

The motion for rehearing is therefore overruled.

Overruled.