Turner v. State

Conviction is for burglary, punishment being four years in the penitentiary.

This is a companion case to Wm. Turner v. State (No. 11279), and Hamilton v. State, (11296) recently decided. The facts testified to by the accomplice witness are fully set out in the opinion in those cases. Practically the same facts appear in the present record but come through appellant's written confession which was taken under the formalities required by law. The confession shows appellant's guilt as a principle in the burglary.

There is no merit in appellant's contention that an acquittal should have been directed because there was no corroboration of the confession. That a burglary was committed by some one is shown by other evidence than the confession. It has been the uniform holding that in such case the confession is sufficient to show connection of the party making the confession with the crime. Silva v. State, 102 Tex.Crim. Rep., 278 S.W. 216; Aven v. State, 95 Tex.Crim. Rep., 253 S.W. 521; Willard v. State, 27 Tex.Crim. Rep., 11 S.W. 453; Lyles v. State,91 Tex. Crim. 127, 237 S.W. 558; Sullivan v. State, 40 Tex. Crim. 633, 51 S.W. 375; Gandy v. State, 99 Tex. Crim. 643,271 S.W. 97; See Branch's Ann. Tex. P. C., Sec. 1890 for collation of further authorities.

A motion for continuance or postponement was made but no bill of exception is found bringing forward complaint based upon the action of the court in overruling it. Without such bill we are precluded from reviewing the question. Martin v. State, 92 Tex. Crim. 124, 242 S.W. 234; Miller v. State, 93 Tex. Crim. 163,246 S.W. 87; See Branch's Ann. Tex. P. C., Sec. 304.

Mr. Bigham, the Sheriff of Bell County, was permitted to testify over objection that appellant while under arrest told him where some of the property taken from the burglarized store had been thrown out of an automobile in a certain lane near Waco, and that appellant went with witness and pointed out the place. No property was found in the lane but when found by the officer it was in possession of a Mr. Pricket. The objections urged were that the property was not found where appellant said it had been thrown out of the car, and was not found as a result of such information, but had already been discovered before appellant made the statement and therefore did not come within Art. 727 Cow. C. P., which permits a confession to be used although made while accused is under arrest if in connection with the confession accused makes statements of facts or circumstances that are found to be true, which conduce to establish guilt — for example — such as the finding of stolen property. It appears from the record that the witness Pricket found eight new shoes at or near the place in the lane which appellant pointed out to the officer. Pricket had taken them to his house. As to the actual recovery of the shoes the sheriff testified:

"I know Mr. Pricket and had a conversation with him while this defendant was present, and recovered the goods from Mr. Pricket. * * * I found Mr. Pricket in proximity to the place or road where Jewell said she threw out the goods, and she showed me the place where she said they threw the goods out of the car."

The facts seem to bring this transaction within the rule announced in Doggett v. State, 38 Tex.Crim. App. 5. It is not necessary that the fruits of the crime be found in the precise place stated by the accused, provided they were traced directly from that place to the locality where found under circumstances showing that they had been moved from where they had been left by accused. Upon the same point see Zumwalt v. State, 5 Tex.Crim. App. 521; Ortez v. State, 68 Tex.Crim. Rep.; Allison v. State, 14 Tex.Crim. App. 127. Even if the propriety of admitting the evidence complained of was doubtful it would not under the facts of this case present a serious question. In appellant's written confession which was properly in evidence appears the same statement about throwing the property from the car into the lane.

The written confession of appellant begins with the statement that she and her companions (naming them) left Waco in a car"which had been stolen." Appellant objected to that portion of the statement which is italicized on the ground that the theft of the car in question was a different offense than the one on trial, that the car had been stolen before they left on the trip during which the burglary occurred, and that no connection was shown between the theft of the car and the burglary. If appellant was in any way connected with the theft of the car in which the parties started on their journey it is not shown. The statement complained of only goes to the extent of showing that she had knowledge of the theft. We think it unnecessary to discuss the bill at length. The confession further shows that appellant and her companions went to San Antonio; that it was upon the return trip the burglary in Williamson County occurred; that on account of various mishaps on the road the parties had abandoned at different points three cars and secured others, the inference being plain that all three had been stolen by some of appellant's companions with her knowledge. This being true, we regard it of slight importance that the jury was informed that appellant knew the car in which they left Waco had also been stolen.

The court properly admitted evidence that appellant's general reputation as a peaceable, law-abiding citizen was bad. She placed her reputation in issue by filing an application for suspended sentence. Overby v. State, 92 Tex.Crim. Rep.,242 S.W. 313; Shirley v. State, 93 Tex.Crim. Rep.,248 S.W. 692, and authorities therein collated.

A witness placed on the stand by appellant testified to her good reputation. On cross-examination the state under such circumstances could properly ask the witness if he had not heard of acts on appellant's part inconsistent with the character he was called to prove. Underhill Crim. Ev. (3rd. Ed.), Sec. 82; Johnson v. State, 91 Tex.Crim. Rep.,241 S.W. 484. On cross-examination of appellant's character witness the state propounded the following question:

"Don't you know it is a fact, or that it is a rumor in Waco, that she (referring to appellant) was charged on the first day of October, 1925, with an offense involving moral turpitude, to-wit: vagrancy — on the fifth day of October, 1925, with breaking quarantine from a syphilitic hospital, and on the 26th day of January, 1926, * * *."

Objection apparently prevented the completion of the question, and the court deeming it improper sustained the objection and directed the jury to disregard it. During argument the District Attorney used this language, "would you turn her loose — a menace to the health of society?" No information is furnished by the bill as to the setting of the language complained of, but it does appear that promptly upon objection being interposed the court instructed the jury to disregard and not consider the statement. The incidents complained of do not appear to have been so obviously harmful that the prompt action of the court did not cure any error which may have occurred.

The judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.