Henderson v. State

Conviction is for burglary of the private residence of Lela Finney with intent to commit theft. Punishment was fixed at five years in the penitentiary.

The charge of the court was not excepted to. One special charge was requested, the refusal of which can not be reviewed. The special charge does not show exception because of its refusal, and no bill to that effect appears in the record. Craven v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 515, Brooks v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 517, Hickman v. State, 93 Tex.Crim. Rep., 247 S.W. Rep., 518.

In the motion for new trial complaint is made that N.P. Duke, one of the jurors, was not a citizen of the State of Texas, nor a freeholder in the State, nor a householder in the county at the time he served on the jury. The affidavit of the juror is attached to the motion in which he does not undertake to set out the facts, but contains the statement that at the time he served on the jury "he was not a citizen of the State of Texas, but at said time was a citizen and resident of the State of Oklahoma." This ground of the motion was controverted by the State. Attached to such controversion are the affidavits of W.R. Bills, a neighbor of the juror Duke, and that of R.D. Duke, his son. The controverting affidavits state the facts and show that said juror was a citizen of the State of Texas and a householder in Lamar County at the time of the instant trial. An issue of fact having been raised with reference to the matter upon hearing the motion, and the court having decided it in favor of the the State we would be bound thereby under the circumstances presented in this record. Even if the affidavit of the juror Duke should be taken as true we do not believe under the authority of Squyres v. State,92 Tex. Crim. 160, 242 S.W. Rep., 1024 and authorities therein cited that appellant would be entitled to a new trial by reason of the facts stated therein.

The only other contention is that the verdict is not supported by the evidence. Appellant and all the parties involved were negroes. On the night of the alleged burglary Lela Finney attended some religious services with a neighbor woman. At the time they left the house of the latter appellant was present and inquired where they were going, and was informed they were going to church. In a few minutes after they had gone a noise at the house of the Finney woman attracted a neighbor woman's attention. She discovered some one tearing the screen off a window, and saw him raise the window and enter the house. She immediately sent a party to notify Lela Finney, who returned, and appellant made his escape out the back door. It appears that an effort had been made to effect an entrance at the back of the house, the screen on that door also having been cut. No property was taken. A rug on the floor appeared to have been rolled up and some chairs overturned. The officers who arrested appellant testified that he had been drinking and was to some extent intoxicated. A white lady for whom appellant worked testified that he was so drunk he was not able to wash the dishes and she had sent him home. The two negro women who saw him immediately before the burglary at the time he learned that Lela Finney was going to church testified that they saw nothing in his conduct at that time to indicate that he was intoxicated. The evidence discloses that he seemed to have had no trouble in making a rapid exit from the house when Lela Finney and other parties reached there after having been informed that some one had broken in.

The court pertinently charged the jury that if appellant entered the house for any other purpose than to commit the specific crime of theft, or if the jury entertained a reasonable doubt upon this point, they should acquit him. In Section 2344, page 1281, Branch's Ann. Pen. Code, is the following announcement of the general rule incident to the question being considered.

"The intent with which the defendant entered the house is a question of fact for the jury, to be gathered from all the circumstances of the case. When it is alleged that the burglarious entry was made with intent to commit theft, and the jury have found that such entry was made with such intent, and such finding has been approved by the trial court, the judgment of conviction will ordinarily be sustained if there is nothing in the testimony to indicate that such entry was made with any other intent."

The authorities collated by Mr. Branch support the statement just quoted, and seem to be applicable to the instant case.

Finding no error in the record, the judgment is affirmed.

Affirmed.

ON REHEARING. May 2, 1923.