Music v. State , 135 Tex. Crim. 522 ( 1938 )

The conviction is for burglary; the punishment assessed is confinement in the penitentiary for a term of seven years.

The indictment charges, in substance, that on or about March 24, 1937, appellant broke and entered the house occupied by M. D. Hanaker with the intent to take therefrom property belonging to said M. D. Hanaker, etc.

The proof shows that about 2:30 or 3:00 A. M. of said night, three men appeared at the depot of the L. A. T. R. R. in the town of Farmersville, captured the night watchman, marched him to the Community Public Service Company, and appellant held a shotgun on him while his two companions entered the building and took $30.00 from a vault. While his coprincipals were so engaged, appellant took charge of another man, Jim Nolan, who happened by the corner where the night watchman was being guarded. When the pair had finished robbing the building, they held a conference with appellant concerning the disposition they should make of the two men, and decided to lock them in the vault. This occurred about 3:45 A. M. About 5 A. M. Miss Willie Cook and Mrs. L. L. Miller, who worked at a nearby coffee shop, came down the street to go to work. The manager had not arrived, so they waited in front of the restaurant. While waiting they observed H. B. Huddleston come out of W. P. Cook's store, located across the street. He came over, took the two women and two boys, who were waiting with them, and put them in the adjoining vault, and disappeared.

Bills of exceptions numbers three and four complain of the testimony given by Miss Cook and Mrs. Miller, showing that Huddleston, one of the burglars, had placed them, along with the two boys, in the vault of the Community Public Service Company, closed the door and placed a crate of soda water bottles in front of it. Appellant objected on the ground that if a conspiracy between himself, Huddleston and another had existed, it had ended at the time the women and boys were placed in the vault, and any subsequent act or declaration by Huddleston was not admissible against him, as the object of the conspiracy had been consummated.

We agree that appellant's contention, as a general legal principle, is correct, unless there was either an agreement between Huddleston and the remaining parties to commit other and further burglaries at this town, or if the booty still remained to be divided, or if the conspirators were endeavoring to escape detection at such time; and, in any event, it seems to us that the action of Huddleston in thus confining the two ladies and two little boys at the same place and in the same manner as the conspirators had at an earlier hour confined the night watchman and Mr. Nolan was for the same purpose and animated by the same motive as had animated them when they first confined these two men. He pursued the same tactics; went to the same place, and used a similar place of confinement for the ladies as had earlier been used for the men, and we think such testimony was material and properly admitted.

Let it be supposed for argument that no one had been able to identify Huddleston at the scene of the burglary, would it not have been a strong circumstance toward fixing his guilt to show that Huddleston, about an hour after the burglary, carried these two women to the burglarized place and placed them in a vault, right next to the vault where the burglars, one of whom was this appellant, had previously placed two men, who could have given the alarm, in a like position as these ladies were placed. We have no way of knowing that the conspiracy was ended. That it had been entered into we are justified by the facts in saying. Then, until their purposes had been fully accomplished, it seems that the conspiracy would continue. These ladies might have been in a position to have given the alarm; they resided upstairs near the scene of the burglary, and it is not a violent presumption to say that they might have seen the events leading up to the burglary and were on their way to give an alarm, otherwise what reason can be given for their incarceration? We find one of the conspirators still at the scene of the burglary, and acting in a similar manner as he was acting at the original burglary, and it seems to us that the jury were justified in believing that the conspiracy had not yet been ended, and that the continued act of one of the conspirators was admissible against all, just as the act of this appellant when he held the night watchman as prisoner while his coconspirators were burglarizing the place was admissible against all, as well as the act of imprisoning such night watchman and Mr. Nolan was admissible against all.

Bill of exceptions number seven complains of the following testimony given by a deputy sheriff of Dallas County: "I knew the house at No. 4323 Electra Street in Dallas. I knew Ray Music, Bill Garrett and H. B. Huddleston. I saw them going in and out of this house on the nights of March 20th and 22nd. I have seen them around that house together and a number of otherthieves."

Appellant objected to this statement by the witness. The court sustained the objection and instructed the jury not to consider it. It occurs to us that such a voluntary statement, which was immediately withdrawn by the court, and which was not responsive to the question, was not of sufficient moment to cause a reversal of this case. Such answer was not called for by the question, and not of such a serious import as to have influenced the jury to render an improper verdict, especially in view of the testimony that the State introduced relative to this offense, and the evidenced belief of the jury in the truth thereof.

Appellant has a number of other bills in the record complaining of the admission of testimony, but the bills are insufficient because they fail to show that at the time of the admission of said testimony, he made any specific objection thereto. All of said bills are qualified by the court and as qualified fail to reflect any reversible error.

The objections to the court's charge have been considered and appear to us to be without merit.

Perceiving no error herein, this cause is affirmed.

ON MOTION FOR REHEARING.