Taylor v. State

DAVIDSON, Presiding Judge.

Appellant was convicted of burglary. There were two bills reserved to the admission of testimony, bringing before us practically the same question. It is asserted in the first bill that Jeff Webb was permitted to testify that about 8 o’clock or a little after on the night of the alleged burglar)'', he walked along and looked at the side of the house and under it saw a hammer and file on the ground, which he picked up and made inquiry as to the ownership; that he further stated that defendant was standing to one side and said “It is mine.” Webb asked him what he was doing with it there. Appellant replied that he had been knocking off wire for Mr. Crowder with the hammer and file, and that he (appellant) had worked rather late, and was coming up to meet a woman on that nine o’clock train and took the hammer and file with him and threw them under the house. Objection was urged to this testimony on the ground that it was irrelevant, improper and immaterial, and was offered for the purpose of laying a predicate to introduce evidence of Mr. Crowder to impeach defendant, and that same was an improper way of making defendant testify, although he did not take the stand. The bill was qualified with the explanation that the testimony was not offered for the purpose above stated, but as a declaration of defendant and as a part of the transaction. Crowder was then permitted to take the stand and contradict appellant’s statement, and to testify that defendant had been working for him the day preceding the burglary at night, but was plowing, and that appellant had not been working on any wire fence, pulling out staples, and that “You couldn’t draw out any staples without a file and hammer; that was not the work he (defendant) was doing.” This was original testimony. The proof indicates that the house was burglarized by pulling a staple out of the door that held a padlock which locked the door, and by that means entry was made, and that on the staple drawn was evidence that a file had been used. We are of opinion that this evidence was clearly admissible as original testimony. Appellant was accounting for the presence of the file and hammer under the house before the burglary by reason of the fact that he had been working that day with the hammer and file on a wire fence for Mr. Crowder. Mr. Crowder was permitted to show this to be false.

The court charged the jury, “If defendant did not enter the house in question you Avill find him not guilty.” This excerpt immediately follows the submission of the issues to the jury which would authorize them to convict, in which they were told if they should find from the evidence beyond á reasonable doubt that defendant, Hose Taylor, at any time, etc., did by force in the night-time enter the house of Webb Bros., as charged with intent to commit the,crime of theft, they would find him guilty of burglary, etc. Then comes the excerpt criticised: “If defendant did not enter the house in question you will find him not guilty.” We have held this character of charge is sufficient and not on the weight of testimony. The court gave a full charge on the law of circumstantial evidence.

It is contended the evidence is not sufficient. We are of opinion it is. In addition to the circumstances, which were rather cogent, we have appellant’s confession.

As this record is presented, the judgment should be affirmed, and it is so ordered.

Affirmed.

Henderson, Judge, absent.