Jefferson v. State

Court of Criminal Appeals of Texas

Jefferson v. State

212 S.W. 505, 85 Tex. Crim. 386, 1919 Tex. Crim. App. LEXIS 524

CourtCourt of Criminal Appeals of Texas

DecidedJune 4, 1919

DocketNo. 5377.

StatusPublished

This text of 212 S.W. 505 (Jefferson 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

Jefferson v. State, 212 S.W. 505, 85 Tex. Crim. 386, 1919 Tex. Crim. App. LEXIS 524 (Tex. 1919).

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Opinions

DAVIDSON Presiding Judge.

Appellant was convicted of burglary, his punishment being assessed at five years confinement ir the penitentiary.

Briefly stating the facts, it is shown that some one entered the residence of the alleged owner, who testified he did not see anybody, but his wife testified that she was aroused at night by what she thought was something touching her, and saw a shadow of what she took to be a man, and as he reached the door of the room he looked at her. She aroused her husband. When he awoke they both heard a door “slam.” The wife testified she did not recognize the defendant or who it was; whether "he was white or black. The owner of the house testified that his pants were hanging on the- head oi the bed containing his watch, a pocket knife, and some other things; that the pocketknife was gone, but the other things were in his pants. Appellant was arrested by the constable charged with an assault, to which he seems to have pleaded guilty and paid the fine.

When the defendant was arrested for the assault the officer says he took two knives from his pocket, one of which was after-wards recognized by the alleged owner of the burglarized house as his property. There was a serious contest as to whether the knife belonged to the alleged owner, or to the brother-in-law of defendant. Defendant proved by himself and other witnesses that the knife belonged to his young brother-in-law from whom he had gotten it some days before. The alleged owner testified that he recognized the knife, among, other things, by reason of the fact there was a gap in the larger blade there being four blades to the knife. The defendant says the gap was in the blade, but that he caused it opening a can of peaches some days before the alleged burglary. Jackson testified he saw defendant open the can of goods, *388 which defendant said were peaches; that they were working together on the railroad and each furnished his own lunch. It was at the noon hour when eating lunch he saw defendant open the can of goods.

A most patent fact was the date of appellant’s arrest for the fighting. He and his witnesses testify that this arrest occurred on the 17th of June. The burglary was committed on the night of the 20th, or the morning of the 21st of June. The constable testifies when he arrested appellant for the fighting he took the knife claimed by the alleged owner of the house and another knife out of appellant’s pocket.' Later he saw the alleged owner of the burglarized house, and in speaking of the defendant having two knives and describing them the alleged owner stated that one of the knives was his, and it was identified by him on the trial and at the time the knife was shown him by the constable. Appellant’s testimony all showed, as before stated, that he was arrested on the 17th of June, and was that day fined, and that night or evening paid the fine. If this occurred, then the knife the constable took from him did not come out of the burglarized house, and there was a mistake in the identity. The officer testified he did not know whether it was before or after the burglary that he. arrested defendant for the fighting. That is the State’s case on the arrest. If the defendant was arrested on the 17th for fighting, or was arrested any time before the burglary and the knife taken from him, then such knife did not come out of the burglarized house. The whole case revolves around the ownership of the knife, and the facts which tend to identify it and the transaction. The .date of the fine of appellant for the fighting ought to and could have been readily shown by the docket of the court assessing the punishment. If it was before the burglary, then the knife in question was not a criminative fqet. Under the deeison it seems that a breaking being shown, recent possession of property that came out of the house would be a circumstance of more pr less cogency to identify the possessor of the stolen property with the burglary. Unexplained it would have more cogency than where the possession is explained in an exculpatory manner. Here it was explained and not controverted. We are unwilling to sanction the conviction with the record in this condition.

The judgment will, therefore, be reversed and the cause remanded.

Reversed and remanded.

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DAVIDSON Presiding Judge.

Appellant was convicted of burglary, his punishment being assessed at five years confinement ir the penitentiary.

Briefly stating the facts, it is shown that some one entered the residence of the alleged owner, who testified he did not see anybody, but his wife testified that she was aroused at night by what she thought was something touching her, and saw a shadow of what she took to be a man, and as he reached the door of the room he looked at her. She aroused her husband. When he awoke they both heard a door “slam.” The wife testified she did not recognize the defendant or who it was; whether "he was white or black. The owner of the house testified that his pants were hanging on the- head oi the bed containing his watch, a pocket knife, and some other things; that the pocketknife was gone, but the other things were in his pants. Appellant was arrested by the constable charged with an assault, to which he seems to have pleaded guilty and paid the fine.

When the defendant was arrested for the assault the officer says he took two knives from his pocket, one of which was after-wards recognized by the alleged owner of the burglarized house as his property. There was a serious contest as to whether the knife belonged to the alleged owner, or to the brother-in-law of defendant. Defendant proved by himself and other witnesses that the knife belonged to his young brother-in-law from whom he had gotten it some days before. The alleged owner testified that he recognized the knife, among, other things, by reason of the fact there was a gap in the larger blade there being four blades to the knife. The defendant says the gap was in the blade, but that he caused it opening a can of peaches some days before the alleged burglary. Jackson testified he saw defendant open the can of goods, *388 which defendant said were peaches; that they were working together on the railroad and each furnished his own lunch. It was at the noon hour when eating lunch he saw defendant open the can of goods.

A most patent fact was the date of appellant’s arrest for the fighting. He and his witnesses testify that this arrest occurred on the 17th of June. The burglary was committed on the night of the 20th, or the morning of the 21st of June. The constable testifies when he arrested appellant for the fighting he took the knife claimed by the alleged owner of the house and another knife out of appellant’s pocket.' Later he saw the alleged owner of the burglarized house, and in speaking of the defendant having two knives and describing them the alleged owner stated that one of the knives was his, and it was identified by him on the trial and at the time the knife was shown him by the constable. Appellant’s testimony all showed, as before stated, that he was arrested on the 17th of June, and was that day fined, and that night or evening paid the fine. If this occurred, then the knife the constable took from him did not come out of the burglarized house, and there was a mistake in the identity. The officer testified he did not know whether it was before or after the burglary that he. arrested defendant for the fighting. That is the State’s case on the arrest. If the defendant was arrested on the 17th for fighting, or was arrested any time before the burglary and the knife taken from him, then such knife did not come out of the burglarized house. The whole case revolves around the ownership of the knife, and the facts which tend to identify it and the transaction. The .date of the fine of appellant for the fighting ought to and could have been readily shown by the docket of the court assessing the punishment. If it was before the burglary, then the knife in question was not a criminative fqet. Under the deeison it seems that a breaking being shown, recent possession of property that came out of the house would be a circumstance of more pr less cogency to identify the possessor of the stolen property with the burglary. Unexplained it would have more cogency than where the possession is explained in an exculpatory manner. Here it was explained and not controverted. We are unwilling to sanction the conviction with the record in this condition.

The judgment will, therefore, be reversed and the cause remanded.

Reversed and remanded.

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212 S.W. 505, 85 Tex. Crim. 386, 1919 Tex. Crim. App. LEXIS 524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jefferson-v-state-texcrimapp-1919.