Moses v. State

61 S.W.2d 112, 124 Tex. Crim. 200, 1933 Tex. Crim. App. LEXIS 421

• Court: Court of Criminal Appeals of Texas
• Decided: May 10, 1933
• Docket: No. 15907
• Status: Published

Opinions

LATTIMORE, Judge.

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

On Sunday night, December 6th, a drug store in Quitaque, Briscoe county, Texas, was burglarized and a number of watches, cigarettes, and other articles taken. Some question is raised in the record and argued in appellant’s brief, turning upon the question of whether the entry was made in the nighttime; it being alleged in the indictment that it was a nighttime burglary. The owner of the drug store testified that he closed it at 6 o’clock every Sunday evening, and that on the particular date involved he opened the drug store the next morning at 7 o’clock. Our burglary statute and the decisions are to the effect that the term “night” as used in said statute means any time from thirty minutes after sunset to thirty minutes before sunrise. While we do not find that the matter has been specifically passed on in this state, it appears correct, and is in line with the holdings in other jurisdictions to say that the courts judicially know that on December 6th in Texas the sun sets within a few seconds of thirty-one minutes after 5 o’clock and rises in the morning within a few seconds of fifteen minutes after 7 o’clock. Ruling Case Law, vol. 15, p. 1100; 4 L. R. A., 35, and cases cited in notes. In Allman v. Owen, 31 Ala., 167, also in Sprowl v. Lawrence, 33 Ala., 674, it is stated that the courts will take judicial knowledge of the days of the week as shown by the almanac. It is held in Cincinnati Railroad Co. v. Worthington, 30 Ind. App., 663, that the courts will take judicial knowldege that at a certain hour or a certain date it was or was not daylight. Also in State v. Gunderson, 56 Wash., 672, 106 Pac., 194, that the courts will take judicial knowledge of the extent of the duration of day and night at a particular place at a particular time.

The above statements relate to the contention of appellant that the testimony of the accomplice Harrell, who said that he, together with appellant, Moses, and one Hammonds, burglarized the house in question about midnight, was not corroborated as to the fact that the burglarious entry was made in the nighttime. In addition to what we have said about judicial knowledge, we further observe that the accomplice testified that he with his confederates left Memphis, Texas, in the late afternoon and drove to Quitaque, at which place they arrived between 7 and 8 o’clock, that they went to the restaurant of Van Winkle and had coffee, and that they were around the town waiting until the lights went out in order to commit the burglary. Mr. Van Winkle testified that he saw said parties in his restaurant on that night and served each with a cup of coffee. In addition to this, Dr. Price, who had his office in or adjoining the burglarized drug store, testified that he had occasion to go into the drug store about 9:30 o’clock that night, and that while he was in same three young men came up in a car and wanted him to let them in the drug store, but he declined. He testified that one of the three parties under indictment, Mr. Hammond, was one of the parties he saw at the drug store that night. We think the testimony amply sufficient to corroborate the accomplice as to the fact of the burglary, and also that same was committed in the nighttime. In addition to the facts above stated, there was testimony describing the tracks of a car near the burglarized store, which tracks were made after a light rain occurring the night of the burglary; also describing the tracks of three parties, having evidently feet of different sizes, which were seen in and around the car tracks and near the burglarized store. There was also testimony that on the next day in Memphis, where this appellant lived, car tracks were observed by the officers whose peculiarities corresponded with those seen in Quitaque as made after the rain. These tracks were followed to a car on the street which belonged to this appellant and which was found at his home a short time after being observed on the streets of Memphis. The measurements of the tracks observed around the automobile tracks in Quitaque were taken and were compared with the shoes worn by appellant, Hammond, and Harrell, and their identity was established by the officer who made the measurements. Harrell, the accomplice, testified to the fact that three of them took the stolen property, upon their return to Memphis from the scene of the burglary, down to his father’s farm some miles from Memphis, where they secreted same in a house under some maize. Said stolen property was found by the officers at said place, and it was identified by the owner.

Without discussing the many cases cited by appellant in hie interesting brief filed herein, we observe that all of them can be distinguished upon their facts from the case before us. We find four bills of exception in the record. The first complains, of the admission of the testimony of Dr. Price. The objection seems based on the proposition that Hammond, the only one of the three persons seen by the doctor whom he identified, was not on trial, and his identification of Hammond would not be binding on appellant, and was not shown to have occurred in his presence. We think there is no substance in the- objection. Harrell testified that he was with Hammond and Moses in Quitaque on that night. The testimony that Hammond was there with two other young men, the others not being noticed clearly enough to be identified, would be admissible, and the objections would go to the weight and not to its admissibility. The second bill presents objection to the testimony as to the tracks of the car and of the different people at the different places. We think the testimony admissible; the only question being as to its weight. The third bill of exception complains of testimony that the appellant and Hammond were observed in Quitaque and around the drug store, which was burglarized, some weeks before the alleged burglary. We think this admissible for what it was worth as showing the association and connection of Hammond and appellant, their knowledge of' and presence at and near the burglarized store prior thereto. Bill of excepton No. 4 complains further of the admission of testimony regarding tracks. We see no reason for discussing same.

Believing the evidence sufficient, and that nothing appears in the record manfesting any error, the judgment will be affirmed.

Affirmed.