Thomas v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

In the bill of exceptions prepared by the trial court, in lieu of appellant’s bill No. 2, it was stated that the argument of the State’s attorney, which formed the basis of the exception referred to, was made in reply to argument theretofore made! by appellant’s attorney. We said in our opinion that it being thus shown that appellant himself had first injected this matter, he might not complain. Appellant now urges that the trial court’s statement in said bill was but a conclusion and unaccompanied by any recital of facts, for which reason this court erred in giving approval to what is claimed to be an erroneous conclusion of the court below. Appellant’s attorneys filed their personal affidavits with the clerk of the trial court, setting up- that they made no such argument as would justify the trial court’s conclusion expressed in the qualification; and it is urged that the court below should have set out the language used by said attorneys in argument so 'that this court might determine therefrom whether the trial •court’s conclusion was correct. We know of no authority holding with appellant in such contention. Our statutes provide ample remedy for one who is not satisfied with the correctness of a bill of exceptions prepared by the trial court in lieu of a refused bill presented by the accused. In a bystanders’ bill properly authenticated, the matters here urged as error could have been fully set out and properly brought before us. The statement by the trial court in his bill that the argument of State’s attorney was made in reply to arguments of opposing counsel, is a statement of fact by the court who heard the respective arguments, and can not be deemed a mere conclusion. The court’s alleged conclusion could only be controverted in the way provided by statute and not by affidavits.

We find nothing in the statement of facts heard by the court below when the motion for new trial was presented, which combats the correctness of the statement that the argument was in reply to that of appellant’s counsel, — even if such had been the proper method of contradiction.

It was not necessary for the State to show the want of consent of the hired man, — who slept in the saddle house on the night of the alleged burglary, — to the entry of the house or to the taking of the alleged stolen property. He was neither general nor special owner. The ownership of the house and property therein was properly alleg’ed to be in Mrs. Crenshaw, the actual owner. See cases cited by Mr. Branch in his Annotated P. C., Sec. 2447; Bennett v. State, 32 Texas Crim. Rep., 216. Nor do we agree with appellant that the case should have been reversed because of misconduct of the jury.

Believing the case properly disposed of in our former opinion, the motion for rehearing is overruled.

Overruled.