Opinion
No. 19016.
Delivered May 19, 1937. Rehearing Denied June 23, 1937.
1. — Burglary — Evidence.
In prosecution for burglary, where there was no testimony that either the owner or any person in charge of the burglarized premises were connected with any claimed entrapment, evidence held sufficient to sustain conviction, as against defense that defendant was induced to commit offense by party employed by the sheriff.
2. — Burglary — Charge.
In prosecution for burglary, failure to charge that testimony, elicited from defendant as to prior convictions for felonies, should be limited to purpose of impeachment, held not to call for reversal, where no application was before jury requesting the suspension of the sentence, since defendant was not entitled thereto because he had theretofore been convicted of a felony, defendant admitted his guilt, and jury assessed the minimum punishment.
3. — New Trial — Juror.
Refusal of motion for new trial because of the service of alleged prejudiced juror, in prosecution wherein sheriff, who had once appointed juror as a deputy sheriff with many others during a strike, testified, held not ground for reversal, where it did not appear, from the record, that the juror was prejudiced.
Appeal from Criminal District Court of Jefferson County. Tried below before the Hon. Robt. A. Shivers, Judge.
Appeal from conviction for burglary; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
Howth, Adams Hart and Mike Daughtry, all of Beaumont, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is burglary; the punishment, confinement in the penitentiary for two years.
The State's proof showed that appellant burglarized the place of business of the Railway Express Agency in Port Arthur. Testifying in his own behalf, appellant admitted his guilt, but declared that R. L. Spurill, who was employed by the sheriff, induced him to commit the offense.
Appellant contends that the conviction should not stand because of the fact that he was entrapped. There is no testimony that the owner of the burglarized premises had anything to do with originating the offense. In short, neither the owner nor any person in charge of the premises was shown to have been connected in any manner with the alleged entrapment of appellant. It follows that we are of opinion that the evidence is sufficient.
It was elicited from appellant that he had theretofore been convicted of other felonies. Appellant excepted to the charge of the court for its failure to limit such testimony to the purpose of impeachment. Such a charge would have been proper. However, in the state of the record, the failure of the court to respond to the exception cannot be held to constitute reversible error. Appellant was in no position to ask for a suspended sentence, having theretofore been convicted of a felony; and no application was before the jury requesting the suspension of the sentence. The jury assessed the minimum penalty. In his testimony appellant admitted his guilt.
In his motion for a new trial appellant alleged that a prejudiced juror had served. It appears that said juror had on an occasion with many others been appointed a deputy sheriff during a strike. The sheriff who appointed said juror was a witness in the present case. There is nothing in the record to show that the juror was prejudiced.
The judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING.
We have carefully reviewed the record in the light of the appellant's motion for rehearing and have reached the conclusion that the proper disposition of the appeal was made upon the original hearing.
The motion for rehearing is therefore overruled.
Overruled.