Wilson v. State

From conviction in the District Court of Hill County of burglary, with punishment fixed at six years in the penitentiary, appeal is taken.

The case is well briefed, and we notice the points in the order discussed. It is insisted that a verdict for appellant should have been instructed because the evidence failed to show any breaking of the building, or that it was entered by force, threats or fraud. Appellant's confession was introduced. In it he said that he with others went into the bank at night and that they burglarized said bank. Plenty of evidence was found in the building the next morning after the alleged burglary to show that persons had entered same. Mr. Patterson, who had charge of the bank in the absence of its cashier, said that he locked the doors and closed the windows of the building when he left it about 5 p. m. on the afternoon before the alleged burglary that night. When he came to the building the next morning it was in the same condition as when he left it, viz.: its windows were closed and the doors locked. The vault of the bank showed plenty of evidence of attempts to penetrate it. On the floor of the bank were many articles which were not there when the bank was closed. These facts suffice to show an entry of the building by breaking. Such entry could be effected by raising the windows, or by the use of any sort of key which would unlock the door.

Appellant next contends that the evidence failed to show that the building was occupied and controlled by Mr. Patterson as alleged in the indictment. We cannot agree to this proposition. The bank building was located in the little town of Osceola and was run by two men, Mr. Edrington being the cashier and Mr. Patterson the bookkeeper. Edrington was in Denver, Colorado, at the time of the alleged burglary, and had left the building and its contents in Patterson's charge. In such case authorities are numerous upholding the allegation and proof of ownership and control of the bank and its contents in the person who occupied the relation to same as did Mr. Patterson. See Sec. 2324, Branch's Annotated P. C. for authorities. Daggett v. State, 39 Tex.Crim. Rep., cited by appellant, holds against him and affirms the doctrine that an owner residing only eight miles from the burglarized premises which were in the care and control of an employe who lived thereon, did not in law have the actual care, control and management of the house alleged to have been burglarized, and that it was proper to allege the ownership in the occupant. Ratcliff v. State, 229 S.W. Rep. 857, also cited, is of the same import. In that case the real owner was prevented by an accident from giving his personal attention to his business at the time of the alleged burglary, and it was held that ownership and control were properly alleged in the man who was looking after it for the real owner. In the case before us the bank was a corporation, Edrington and Patterson being the only employes. Edrington had been gone from Osceola several days before the burglary and did not return for some time thereafter. No other person had anything to do with the bank building in Edrington's absence save Patterson. Allegation and ownership in Patterson was proper and sustained by the proof.

As stated above, appellant's written confession was introduced by the State. In it he said: "I assisted Ike Weatherred and Edgar Hammonds in completing arrangements to burglarize the bank at Osceola, Texas. * * * We got to Osceola and parked our car out near the school house. We then went on to the bank and Stanley went out in front of the bank and said he would watch for us. Ike Weatherred, Edgar Hammond and I all went into the bank. * * * I was in and out of the building. * * * When we got back to Cleburne the night we burglarized the bank Stanley carried the car back to Joplin." The only objection made to the introduction of said confession was that the accused was not properly warned. The writing contained a legal warning, the recitals of which were not contradicted therein in any way, nor did appellant when he took the witness stand deny the giving of the warning set forth. The confession was properly admitted in evidence.

Appellant took the witness stand and testified that he signed said confession, but in so far as same connected him with said burglary its statements were untrue. He said he signed the statement to get out of jail; that he was broke, that his wife and children were at home and he had not seen them since he was put in jail, and that he would not have signed the statement if he had not thought he would get out of jail. This constitutes all the attack made on the voluntary character of the confession, and in our opinion amounts to nothing. It is not asserted that any one in authority, directly or indirectly, did or said anything which induced appellant to make said confession. Williams v. State, 19 Texas Crim. App. 279; Campbell v. State, 63 Tex.Crim. Rep..

The trial court correctly refused appellant's special charge No. 2, wherein he sought to have the jury told that they should not consider the confession unless they believed its statements to be true, and that, if they found same to be untrue, the case would be one of circumstantial evidence. There was no warrant for said charge either in fact or law, and for this court to so hold would engraft on our practice the singling out in any case of the direct testimony on which the State relied, and telling the jury in the charge that if they did not believe this direct testimony to be true, then the case would be one of circumstantial evidence. The unsoundness of such doctrine needs no discussion.

The court's charge is criticised for saying: "The word 'entry' as used in this charge means any kind of entry without the consent of the occupant or owner of said building." Unless the facts show an entry at night and by breaking, such charge might be erroneous — but errors in the charge are not to be held reversible under Art. 743 of our C. C. P., unless hurtful to the rights of the accused. When the facts of the particular case show, as is the case here, that the entry was at night and by breaking, — the giving of a charge such as the one under discussion could be of no possible harm. Crane v. State, 240 S.W. Rep. 920. As in the case just cited, the court in the instant case, in applying the law to the facts, told the jury they must believe beyond a reasonable doubt that appellant "At night, did unlawfully break and enter" the house in question. Appellant relies on Weatherred v. State, 276 S.W. 436, but the facts in that case were different from those before us. We know of no well considered case since the enactment of Art. 743, supra, wherein the facts showed an entry at night by breaking, which has been reversed for the giving of this erroneous charge.

What we have just said applies equally to appellant's complaint directed at the court's definition of "force" as "Any manipulation or effort employed to overcome any obstruction whatsoever." We doubt the necessity of attempting to define force in a burglary case. The word is of common use and too well understood. "Breaking" is defined by the statute as the use of the slightest force, such as raising a window, lifting a door latch, and, as stated in many cases, "opening a closed door of a house." The definition of force in the charge herein under the facts of this case could be of no injury, and would not call for a reversal. The error in the charge defining "night-time" is of slight weight. It states that by nighttime is meant any time within the twenty-four hours from thirty minutes after sunset until thirty minutes before sunrise. To be sure there exists no such length of time between thirty minutes after sunset and thirty minutes before sunrise, as twenty-four hours. The statutory expression in Art. 1310, Vernon's C. C. P. is a bit awkward. It is suggested that in defining daytime or night-time in burglary cases, it would be clearer to omit the words "twenty-four hours." Night-time in burglary is any time from thirty minutes after sunset to thirty minutes before sunrise.

In asserting that this case, in spite of the fact of appellant's confession, should be held one of circumstantial evidence, appellant cites Early v. State, 97 S.W. Rep. 82. We are unable to find any analogy. In the case cited the confession of the accused went no further than to show him one of the parties present at the place where the homicide was committed. His participation in same was not admitted, but combated. We held that the fact that there was a confession which went no further than it did, did not take the case out of the rule of circumstantial evidence. In the case before us appellant not only admitted his presence, but his participation, his entry into the building, that it was at night, that they went back to Cleburne after they "burglarized the bank."

There are other matters complained of but without burdening this opinion with them in detail, we have considered same and find no error in any of them. It was proper to detail the condition of the building the morning after the burglary, of the vault, the movements of the officers, the finding of secreted articles such as were apparently used in the efforts to get into the vault, the watch kept of such articles, and the arrest of appellant and others at the place where same were hid, the night after the burglary. In his confession appellant admitted going the next night after the burglary to where said articles were hidden, to get them. He told what each member of his party furnished in the effort to burglarize the bank. Nor was there error in admitting evidence that at various times reasonably near to that of the burglary, various articles similar to those so had and found were missed from the Santa Fe shops where appellant worked. Proof of what appellant's witness Stiles testified before the grand jury as to statements made by appellant to him in an effort to induce witness to go and aid appellant in robbing a bank, was admissible to impeach Stiles. Objections to the argument of State's counsel were without merit.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON MOTION FOR REHEARING.