Lamater v. State

DAVIDSOÜST, Judge.

Appellant was convicted of burglary, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

The indictment contains several counts, but the conviction was under the first, which charged appellant with burglarizing a certain public school building on McKinney Avenue, in Dallas County, Texas, belonging to the city of Dallas. The entry is alleged to have been made with intent to steal certain property belonging to J. S. Spivey. The proof on the part of the State showed that J. S. Spivey was the janitor of said school building and that the property taken was certain school books belonging to the pupils. It further showed that J. S. Spivey, as janitor, had charge and control of the building and its contents from 4 p. m. until 8 o’clock of the following morning; that he carried the key, closed the building in the evening, and opened it up for the scholars the next morning. The evidence shows that the burglary was committed at night.. On this state of facts the court charged the jury as follows: “A person who is in the direct control of a house, and exclusive management and control of the property, is, for the purposes of law, the occupant of such house, and owner of such property.” Appellant excepted to this charge, and insists ithat it is not the law; and further, that the proof does not show on the part of Spivey, the alleged owner, such exclusive management and control of the property as constituted him the special owner. We can not agree with counsel in this contention. The court was authorized to give the charge in question, and the evidence authorized the jury to find Spivey was the owner of said books, although the general property was shown to be in the pupils. See Linhart v. State, 33 Texas Crim. Rep., 504.

The court did not err in permitting the witness Nabors to name the books which he received from the officers. These were sufficiently identified as the stolen books by other witnesses. Nor did the court err in admitting the testimony of Charles J ones as to the statements made by the two boys (appellant and his codefendamt) in his bookstore on the morning after the burglary, that they bought the books from Kerrigan, a book dealer of the city. The two boys were together when they made this statement, and it was the statement of each; and, although Jones was not positive that the boys in the store were the same boys then being tried, yet, in connection with his testimony, these boys were sufficiently identified as the boys who made the statement to him.

There was no prejudice in regard to the remark of the witness George Stevenson that he had been running with the appellant (Lamater) since he had been liberated from the State reformatory. This was not in answer to any question propounded by the State, and, as soon as the answer was elicited, the court promptly excluded it from the consideration of the jury. The testimony regarding the books found at the home of the defendant under an outhouse on his father’s lot, a short distance from his residence, shortly after the burglary, was properly admitted. Other testimony showed that they were some of the same books taken •at the time of the commission of the burglary, and the fact that they were found concealed on the premises where defendant lived was a circumstance which the jury were authorized to consider. Nor was it error to admit the testimony of the witness that on the morning succeeding the burglary defendant was seen in company with George Stevenson, his alleged accomplice; and we think all the testimony of the witness George Stevenson was properly admitted. The court very properly told the jury that, if they believed from the testimony that defendant and George .Stevenson bought the books about which the witness Jones testified from John Kerrigan, or from anyone, they would not consider the books or their possession as a circumstance against appellant. The court might have gone further, and' directed an acquittal on this ground; but, in our opinion, he went far enough. This was the explanation given to Jones by appellant and his codefendant, Stevenson; and, of course, all that appellant could require from the court was an instruction to the jury, if they should believe the explanation made by them, which was that they bought the books from Kerrigan, not to consider such possession for any purpose. We also hold that the charge of the court with reference to George Stevenson as an accomplice was not upon the weight of the testimony.

There being no errors in the record, the judgment is affirmed.

Affirmed.