Billie Brewer v. State

The offense is burglary; the punishment, confinement in the penitentiary for two years.

The proof on the part of the State was to the effect that the store of Alex Mayer was burglarized on the 31st of March, 1935, and several articles of merchandise taken therefrom. On the 20th of April, 1935, officers searched appellant's residence and found therein some suits of clothes and other merchandise. Mr. Mayer and other witnesses testified that the articles found by the officers had been in the store shortly before the burglary. In short, their testimony warranted the conclusion that said property had been taken from the store at the time of the burglarious entry.

Testifying in his own behalf, appellant declared that he had bought said merchandise from a man in the city of Coleman. He said he did not know his name. Appellant's mother testified that she had let him have twenty-five dollars with which to buy some clothes.

We deem the evidence sufficient to support the judgment of conviction.

Bill of exception No. 1 deals with appellant's objection to the testimony of Alex Mayer to the effect that he was in charge of the burglarized building and had the control and possession thereof. Mr. Mayer testified that the Handleman Store, of which he was manager, was a corporation and that he owned forty per cent of its stock. We do not understand that his further statement that he was in charge of the building and had control and possession of it was a conclusion and inadmissible.

Bills of exception 3, 4, 5, 6, 8 and 9 deal with appellant's objections to the testimony of Alex Mayer and Edwin Fowler to the effect that the property exhibited to them and found in appellant's possession had been in the store shortly prior to the burglary and that same was missing shortly after the burglary. These witnesses positively identified the stolen property, basing their testimony on their familiarity with said property and the marks, brands and tags. We are unable to agree with appellant that their testimony constituted mere opinions and conclusions as to the identity of said property. In Busby v. State, 292 S.W. 234, we said:

"One who testifies from personal knowledge to the identity of property found in the possession of the accused with that which was stolen is not understood as giving an opinion offensive to the rules of evidence. His statement is one of fact. It may be untrue or he may be mistaken, but the statement is not to be classified as an objectionable opinion."

Bills of exception 2 and 7, as qualified by the court, fail to present error.

Bills of exception 10 and 12 relate to the refusal of the court to permit witnesses for appellant to testify that appellant stated to them that he had bought the clothes in question. This testimony was self-serving and inadmissible. Harrison v. State, 278 S.W. 430. No one had challenged appellant's right to the possession of the clothes at the time the purported statements were made. Said statements were not admissible under the rule of res gestae, nor under the provisions of Art. 728, C. C. P.

A careful examination of the record leads us to the conclusion that reversible error is not presented.

The judgment is affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.