Henderson v. State , 94 Tex. Crim. 97 ( 1923 )

The case of Freeman v. State, (218 S.W. Rep., 878,86 Tex. Crim. 331), and other cases to which appellant refers in his motion for rehearing are ones in which the evidence suggested that the entry was for a purpose other than theft. For example: in Freeman's case, there were two women in bed near the window through which Freeman attempted to enter. He was familiar with the surroundings and as stated in the opinion, the evidence was probably more cogent to establish an intent to rape than to steal. A similiar state of facts is revealed by the record in Sedgwick's case, 57 Tex.Crim. Rep.. So in Mitchell's case, 33 Tex.Crim. Rep., the accused entered the house and caught hold of the foot of the girl who was asleep therein. She raised an alarm and he fled. A similar state of facts was also before the court in Moore's case, 37 S.W. Rep. 747. In the case in hand, Lela Finney, the owner of the house, was not at home. This was known to the appellant. The theory that he made the forcible entry for an assignation with Lela Finney is nullified by the knowledge on the part of the appellant that she was away from home. Moreover, on her arrival he fled. There was some disarrangement of the property, including the rolling or folding of a rug which may or may not have been done in preparation for its removal. It is believed that the facts bring the case within the principle declared in Love's case, 82 Tex.Crim. Rep., in which reference is made to a quotation by Judge Davidson of this court in the opinion in Alexander's case, 31 Tex. Crim. 359. The quotation reads thus:

"Though there was no direct evidence of the intent, it might be inferred from the surrounding circumstances. The weight to be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of the night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under such circumstances."

Moore's case (52 Tex.Crim. Rep.) which was written by the same judge that prepared the opinion in Sedgwick's case relied on by appellant, illustrates the distinction to which we have adverted. It was held that the proof showing the intent to have been evil, its purpose was discernible from circumstances and that the jury hearing the evidence and having concluded it to be sufficient to repel any intent save that of theft, was not to be disturbed on appeal. The facts in that case were conceived to be no stronger in favor of the State than those of the instant case.

The motion for rehearing is overruled.

Overruled.