Maxey v. State

DISSENTING OPINION ON APPELLANT’S MOTION FOR REHEARING

ONION, Judge.

I feel that in all good conscience I must dissent to the overruling of appellant’s'motion for rehearing. Appellant’s contention that the proof fails to show ownership of the house burglarized as alleged is, in my opinion, well taken.

It is the burden of the state to prove the allegation of ownership as laid in the indictment. This burden is not discharged by the likely possibility that the witnesses were all referring to the same house or building.

Mrs. King, who gave her address simply as Box 436, testified that she was the assistant caretaker of a convalescent hospital located about one mile north of Highway 75. She did not testify that such location was in Dallas County, nor did she testify that she or her husband (the caretaker) were county employees or that the building or buildings at the location were county-owned. In fact, she offered no testimony as to ownership at all.

Luther Chennault, Deputy Sheriff, testified that he received a “call of a suspicious person at the convalescent home on Highway 75.” He related that he contacted a Mrs. King upon his arrival and subsequently arrested the appellant. Other than stating that the convalescent home was in Dallas County, he did not testify as to its exact location or address or indicate that the address given in the “call” was correct. He offered no testimony as to ownership at all.

Jake L. Ballard, the alleged owner of the house, testified that as county building superintendent in charge of all county-owned buildings, he had care, custody and control of the convalescent home on Highway 75 in Lancaster. He did not indicate any personal knowledge of the burglary nor did he testify that he knew or was acquainted with the Kings or that they were county employees or were caretakers at the location to which he referred at the time in question. In fact, in his testimony he did not mention nor refer to the Kings at all.

It is true he was permitted to testify that he did not give appellant consent to break into the convalescent home under his control. There is no proof, however, that a building of which Ballard had care, custody and control was in fact burglarized. See Gilbreath v. State, 158 Tex.Cr.R. 616, 259 S.W.2d 223.

There was no evidence offered as to the number of convalescent homes or hospitals on Highway 75, one mile north thereof, or in Lancaster, or in the general vicinity; but the absence thereof does not, in my opinion, raise a presumption that there was only one such place, casting the burden upon the accused to show, at least by inference, the contrary.

If Ballard was in custody and control of the house actually burglarized, it would not have been difficult for the state to have clearly established that fact. Inadvertence or want of proper care should not be condoned under the facts presented. We should not be asked to affirm this enhanced penalty of life under these circumstances.

Being convinced that the evidence fails to sustain the ownership of the burglarized premises as alleged, I dissent to the overruling of appellant’s motion for rehearing.

Morrison J., joins me in this dissent.