Childs v. State

Court of Criminal Appeals of Texas

Childs v. State

71 S.W.2d 526, 126 Tex. Crim. 384, 1934 Tex. Crim. App. LEXIS 692

CourtCourt of Criminal Appeals of Texas

DecidedApril 18, 1934

DocketNo. 16594.

StatusPublished

This text of 71 S.W.2d 526 (Childs v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Childs v. State, 71 S.W.2d 526, 126 Tex. Crim. 384, 1934 Tex. Crim. App. LEXIS 692 (Tex. 1934).

Pincite

Opinions

LATTIMORE, Judge. —

Conviction for burglary; punishment, two years in the penitentiary.

We find in the record only one bill of exceptions, which complains of the refusal of the court below to allow in testimony an almanac for the purpose of showing what time the moon set on the night of the alleged offense. We know of no rule of law which would demand the use of such proposed testimony. There are probably almanacs and almanacs. There was no effort made to establish any authenticity or correctness of the almanac offered in this case. The authorities cited in appellant’s brief seem to indicate that in the opinion of judges of other states judicial notice shall be taken of the time when the moon or sun rises on particular days. Of course if this be true, there was no sort of error in the rejection of the almanac, — for if the court took judicial knowlege of the time the moon set on the night of the alleged offense, there would be no need to introduce the almanac. We do not think the bill of exceptions shows any error.

The facts seem against appellant’s proposition that the jury were not warranted in concluding his guilt established by the proof. The alleged burglarized building was equipped with a burglar alarm. The opening of the door automatically notified the central telephone operator. Being so notified on the night in question, said operator phoned to the owner of the building and apparently to the night watchman. The said owner lived *386 only a short distance from the burglarized house, and hastily went to same. He testified to the fact that his building was entered on the night in question without his consent, etc. He said when he got there the law had already caught one man out in front of the building. As we understand the record, not only was it shown that the outside door of the building was opened by force, but also the office door within the building. The night watchman testified that he got a telephone call from central about two o’clock in the morning and ran down to the Gulf Warehouse, the building that was alleged to have been burglarized. He said he was about three blocks away from it when notified. When he got near to said building he saw a car backed up to the platform and'a man standing in front of it. This man turned and spoke to some one else, and witness understood him to say “Here comes Dick.” Witness’ name was Dick Lawrence. He further testified that he saw someone come out of the building, and that it was this appellant. Lawrence swore that appellant came out on the platform, jumped down, ran to the car, got in same and hurried away. Appellant’s familiar name appears to be Pete. Lawrence testified that as appellant started to get off the platform witness called to him and said “Don’t run Pete, I know who you are.” When appellant got in the car and started away witness fired at the car and struck the left front fender and the motor, as he later found out. He found appellant about four o’clock at the home of the latter. Examining appellant’s car, he found a bullet hole going through the fender and where a bullet had struck the motor. It was a fresh hole. He testified that it was a moonlight night, but he did not undertake to say in what part of the heavens the moon was. This witness also testified that he was down at the ice plant that night where he arrested a man who was trying to break in the ice plant. This happened about twelve-thirty, and this fact was elicited from him on cross-examination. Witness very positively identified appellant as the man he saw come out of the alleged burglarized building. It was shown by other testimony that the building was locked when its occupants left it the night before, and that the lock was gone when the burglary was discovered. The lock was never found. We see no need for further discussion of the facts, which seem ample to support the conclusion of guilt. In his brief appellant insists that it was fundamental error for the court not to charge on circumstantial evidence. No exception was reserved to the charge of the court. The charge thus appearing to be satisfactory to the appellant, we must decline to hold the failure to submit a charge upon such theory to be such error as *387 calls for a reversal. Jazo v. State, 114 Texas Crim. Rep., 567; Nicholson v. State, 20 S. W. (2d) 762; Duffer v. State, 115 Texas Crim. Rep., 513; Jennings v. State, 51 S. W. (2d) 341.

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

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

LATTIMORE, Judge. —

Conviction for burglary; punishment, two years in the penitentiary.

We find in the record only one bill of exceptions, which complains of the refusal of the court below to allow in testimony an almanac for the purpose of showing what time the moon set on the night of the alleged offense. We know of no rule of law which would demand the use of such proposed testimony. There are probably almanacs and almanacs. There was no effort made to establish any authenticity or correctness of the almanac offered in this case. The authorities cited in appellant’s brief seem to indicate that in the opinion of judges of other states judicial notice shall be taken of the time when the moon or sun rises on particular days. Of course if this be true, there was no sort of error in the rejection of the almanac, — for if the court took judicial knowlege of the time the moon set on the night of the alleged offense, there would be no need to introduce the almanac. We do not think the bill of exceptions shows any error.

The facts seem against appellant’s proposition that the jury were not warranted in concluding his guilt established by the proof. The alleged burglarized building was equipped with a burglar alarm. The opening of the door automatically notified the central telephone operator. Being so notified on the night in question, said operator phoned to the owner of the building and apparently to the night watchman. The said owner lived *386 only a short distance from the burglarized house, and hastily went to same. He testified to the fact that his building was entered on the night in question without his consent, etc. He said when he got there the law had already caught one man out in front of the building. As we understand the record, not only was it shown that the outside door of the building was opened by force, but also the office door within the building. The night watchman testified that he got a telephone call from central about two o’clock in the morning and ran down to the Gulf Warehouse, the building that was alleged to have been burglarized. He said he was about three blocks away from it when notified. When he got near to said building he saw a car backed up to the platform and'a man standing in front of it. This man turned and spoke to some one else, and witness understood him to say “Here comes Dick.” Witness’ name was Dick Lawrence. He further testified that he saw someone come out of the building, and that it was this appellant. Lawrence swore that appellant came out on the platform, jumped down, ran to the car, got in same and hurried away. Appellant’s familiar name appears to be Pete. Lawrence testified that as appellant started to get off the platform witness called to him and said “Don’t run Pete, I know who you are.” When appellant got in the car and started away witness fired at the car and struck the left front fender and the motor, as he later found out. He found appellant about four o’clock at the home of the latter. Examining appellant’s car, he found a bullet hole going through the fender and where a bullet had struck the motor. It was a fresh hole. He testified that it was a moonlight night, but he did not undertake to say in what part of the heavens the moon was. This witness also testified that he was down at the ice plant that night where he arrested a man who was trying to break in the ice plant. This happened about twelve-thirty, and this fact was elicited from him on cross-examination. Witness very positively identified appellant as the man he saw come out of the alleged burglarized building. It was shown by other testimony that the building was locked when its occupants left it the night before, and that the lock was gone when the burglary was discovered. The lock was never found. We see no need for further discussion of the facts, which seem ample to support the conclusion of guilt. In his brief appellant insists that it was fundamental error for the court not to charge on circumstantial evidence. No exception was reserved to the charge of the court. The charge thus appearing to be satisfactory to the appellant, we must decline to hold the failure to submit a charge upon such theory to be such error as *387 calls for a reversal. Jazo v. State, 114 Texas Crim. Rep., 567; Nicholson v. State, 20 S. W. (2d) 762; Duffer v. State, 115 Texas Crim. Rep., 513; Jennings v. State, 51 S. W. (2d) 341.

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

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

71 S.W.2d 526, 126 Tex. Crim. 384, 1934 Tex. Crim. App. LEXIS 692, Counsel Stack Legal Research, https://law.counselstack.com/opinion/childs-v-state-texcrimapp-1934.

Opinions

Related

Cite This Page — Counsel Stack