Ferguson v. State

40 S.W.2d 107, 118 Tex. Crim. 57, 1931 Tex. Crim. App. LEXIS 535

• Court: Court of Criminal Appeals of Texas
• Decided: June 3, 1931
• Docket: No. 14272.
• Status: Published

Opinions

LATTIMORE, Judge.

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

The indictment herein charged the burglary of a building occupied by Joe Pollard, with the intent to take from said building property therein being and belonging to said Pollard without his consent and with intent to deprive him of the value thereof, it being further averred that Pollard was the agent and manager for the Temple Lumber Company. Appellant moved to quash the indictment for various reasons. We do not think the fact that the special owner Pollard was described in the indictment as the ■agent of the Temple Lumber Company would in anywise affect the sufficiency of the indictment. Under all the authorities the averment of ownership of the burglarized house and contents may be laid in a special owner as well as a general owner. The testimony showed that Mr. Pollard had a special ownership in the house and property mentioned.

We find in the record some sixteen bills of exception, each of which has been examined but in the majority of which the questions raised do not seem to call for a discussion of any character.

There is complaint of the reception in evidence of testimony concerning conversations had by the officers with appellant after he was arrested. The objection against the reception of such testimony,- — that appellant was under arrest, is rendered of no avail by proof of the fact that in consequence of the statements made by him and the information then given the officers thereafter found and located the property alleged to have been stolen from the burglarized house. Under all the authorities and article 727, C. C. P., the fact that the accused was under arrest when he made the statement, avails him nothing.

Appellant makes complaint of the fact that one of the jurors who tried him was discovered after the trial to be neither a freeholder in the county nor a householder in the state. Evidence regarding this matter was heard when motion for new trial was presented. Conceding the fact that the contention is true and that information of this fact was prevented by reason of the silence of the juror when the general questions upon this point were asked by the court below during the qualification of the tales-men, still in view of the fact that the lowest penalty was given, and that there is no showing made of any particular injury resulting, we must follow the authorities and hold the matter of no injury. Leeper v State, 29 Texas App., 72, 14 S. W., 398; Lane v. State, 29 Texas App., 319, 15 S. W., 827; Mays v. State, 36 Texas Crim. Rep., 437, 37 S. W., 721; Martinez v. State (Texas Crim. App.), 57 S. W., 838, 839.

Finding no error for which the case should be reversed, the judgment will be affirmed.

Affirmed.