Davis v. State

321 S.W.2d 873

Opinions

WOODLEY, Judge.

The indictment charged the offense of robbery of R. C. Craig by assault and violence, and in a separate count alleged the burglary with intent to commit theft of a house belonging to R. C. Craig.

. Both counts contained further allegations of two prior convictions of felonies less than capital successively committed in New Mexico, in May 1954 for grand larceny, and in November 1955 for breaking and entering in the nighttime with intent to commit larceny.

' Both counts were submitted to the jury with instructions not to consider the burglary count if the defendant was found guilty of the charge of robbery.

The jury found appellant guilty of robbery and found that he had been twice previously convicted of felonies less than capital, as charged, and the court pursuant to Art. 63, Vernon’s Ann.P.C., entered judgment ordering that appellant be confined in the penitentiary for life.

Briefly stated, the evidence shows that appellant, a white man, and Charles Everett Banks, a Negro, an accomplice witness for the state, came to El Paso accompanied by two Negro women for the purpose of burglarizing-.

Having gained entrance into the Mills Building during the night by removing a window pane, and into a loan company’s offices on the 5th floor, the doors of which were closed and locked, appellant was busily engaged in breaking into or stripping the loan company safe, Banks keeping watch, wheri R. C. Craig, the night watchman, appeared.

Craig, who the evidence shows had control and custody of the building and the offices during the night, was confronted with a pistol by Banks, was threatened with death and his hands were bound behind his back while the job of breaking into the 500 pound iron and cement safe was completed and some $2,300 taken therefrom.

Appellant and Banks left with the money, except for some checks and coins found scattered on the office floor, leaving Craig in a supply closet tied to a conduit.

In an exchange of courtesies, Craig, whose hands were still bound behind him, was permitted to sit on a stool in this closet and was tied to the conduit so that he could “get loose pretty quick” but not “right away.” Craig told appellant which of his keys to use to get out the back gate, and appellant and Banks promised to leave the keys there, and did.

Both appellant and Banks were positively identified by Craig, the night watchman.

Appellant complains that the court should have sustained his motion to require the district attorney to elect upon which count of the indictment the state would rely.

Burglary with intent to commit theft and robbery are offenses of the same nature. Ex parte Ranels, 155 Tex.Cr.R. 560, 237 S.W.2d 317; Farris v. State, 155 Tex.Cr.R. 261, 233 S.W.2d 856; Branch’s Ann.P.C., 2d Ed., Sec. 698.

The offenses arose out of the same act or transaction, and the evidence would support a conviction under either count. Under such facts the state is not required to elect. McKinnon v. State, 159 Tex.Cr.R. 65, 261 S.W.2d 335; Branch’s Ann.P.C., 2d Ed., Sec. 464.

The state’s proof in support of the allegation of prior convictions consisted of certified copies of the pleadings, judgments, and sentences, together with certified copies of commitments with attached photographs and fingerprints, and certificate as to the laws of New Mexico relating to the crimes charged. Also the testimony of a fingerprint expert based upon comparison of such prints with appellant’s fingerprints taken by him, showing that the prints were those of the same person, and testimony that the photographs appeared to be of appellant.

Such manner of proving prior convictions alleged for enhancement has been held sufficient, in the absence of any testimony to the contrary. See Stockwell v. State, Tex.Cr.App., 316 S.W.2d 742, and cases there cited.

Other grounds advanced for reversal by appellant’s earnest counsel have been considered and are overruled.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.