Opinion
No. 11920.
Delivered October 31, 1928. Rehearing denied January 9, 1929.
1. — Burglary — Of Box Car — Requested Charges — When Presented — Rule Stated.
On the trial of any criminal case requested charges must be presented to the trial court, before the main charge is given to the jury. Unless so presented, their refusal will not be considered on appeal.
2. — Same — Argument of Counsel — Not Improper.
Where the evidence disclosed that appellant on trial for burglary of a box car had been previously convicted for that offense, and that he was shot at the time he was apprehended by the officer arresting him in the car, there was no error in the argument of state's counsel to the effect that he didn't blame the officer for shooting the defendant because the defendant had been convicted of box-car robbery three times before and was a dangerous character.
3. — Same — Continued.
Nor is reversible error shown in the argument of state's counsel that "if the defendant's attorney thought the state had not made out a case, he would have asked the court to instruct the jury to find the defendant not guilty, but that his attorney had not so requested the court.
4. — Same — Impeaching Defendant — Proof of Former Convictions — Properly Admitted.
There was no error in compelling the defendant, on his cross-examination, to admit that he had been convicted and served a term in the penitentiary in 1920 for box car robbery and theft. This was not too remote and was admissible to affect defendant's credibility as a witness.
ON REHEARING.5. — Same — Evidence — Ownership and Possession — Properly Established.
Where the car alleged to have been burglarized was in the station of said company awaiting unloading, ownership and possession of said car was properly alleged and proven to be in the local agent of said railway company.
6. — Same — Confession of Defendant — Properly Submitted to Jury.
Where a confession of appellant was introduced, and the appellant claimed that when he made the confession he was not rational, this issue having been submitted to the jury in a special charge requested by appellant, their determination of the matter cannot be disturbed.
7. — Same — Charge of Court — On "Entry" — Erroneous, but Harmless.
The court's charge to the jury which instructed them that by the term "entry" into a railroad car is meant any kind of an entry but one made by the free consent of the owner, etc., was clearly erroneous, but under Art. 666, C. C. P., the error being harmless would not call for a reversal of the judgment.
8. — Same — Argument of Counsel — Not Improper.
We are unable to alter our original opinion to the effect that the argument of counsel complained of by appellant was erroneous. The facts shown by the record clearly warranted the argument made.
Appeal from the District Court of Jefferson County. Tried below before the Hon. Geo. C. O'Brien, Judge.
Appeal from a conviction for the burglary of a box car, penalty two years in the penitentiary.
The opinion states the case.
O. M. Lord of Beaumont, for appellant.
A. A. Dawson of Canton, State's Attorney, for the State.
Offense, burglary; penalty, two years.
Appellant was apprehended in the act of burglarizing a box car. He signed a confession admitting his guilt. Appellant questions the sufficiency of the evidence. We regard it as abundantly sufficient to support the verdict of the jury.
Several special requested charges appear in the transcript. None of these are shown to have been timely presented. Under oft-repeated decisions these present nothing for review.
Appellant was shot at the time he was apprehended by McCall, a special officer. Objection was made to the argument of the County Attorney to the jury to the effect in substance "that he did not blame McCall for shooting the defendant because the defendant had been convicted of box car robbery three times before and was a dangerous character." The confession of appellant shows that he had been convicted and the argument of the County Attorney appears justified by the facts in evidence.
Another bill is presented to the closing argument of the County Attorney in which it was alleged he stated that "if the defendant's attorney thought the State had not made out a case, he would have asked the Court to instruct the jury to find the defendant not guilty but that his attorney did not so request the Court to give any such instructions, when in fact the County Attorney well knew that the defendant's attorney had in fact requested the Court to instruct the jury to find the defendant not guilty." The appellant received the lowest punishment. In our opinion such an argument could not have injured appellant. His guilt is overwhelmingly established and the verdict seems clearly in response to the evidence rather than to any improper argument.
By Bill No. 4 it is made to appear that defendant was compelled to answer that he had been convicted and served a term in the penitentiary in 1920 for a box car robbery and theft. This was not too remote and was admissible to affect defendant's credibility as a witness, he having taken the stand to testify; besides, his confession admitted, apparently without objection, contains substantially the same testimony.
These are all the questions presented. They are so well settled that we have not thought it necessary to cite authorities.
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.
Mr. Richardson was local agent of a railway company, and the car alleged to have been burglarized was in the station of said company awaiting unloading. Same was in the care, control and management of Richardson. The contention is now made that McMahon, warehouseman under Richardson, had the care and control of the car in question, and that the testimony does not support the allegation in the indictment of ownership of the car and its contents in Richardson. We find ourselves unable to agree to this proposition. The testimony was that the car in question had not been "spotted" for unloading. Except when in the discharge of his duty to unload, when that time came, McMahon had no control of the cars in the station. This seems to dispose of this contention made in the motion.
On the general proposition that the evidence did not make out a case, as said by us in our former opinion, the confession of appellant was in evidence admitting his guilt, and this with other testimony amply supported the State's theory. Appellant claimed that when he made the confession he was not rational. The court below gave a special charge prepared by appellant's counsel telling the jury that unless they found from the evidence that appellant was normal and rational when he made the confession referred to, they should not consider same for any purpose. The jury apparently decided this issue against appellant.
In this case we are of opinion that that part of the charge of the court instructing the jury that by the term "entry" into a railroad car is meant any kind of entry but one made by the free consent of the owner, etc., was clearly erroneous, — but the facts in this case showing that such entry was by force and a breaking, — the error referred to must be held harmless. Crane v. State, 240 S.W. Rep. 920. Both in the confession of appellant and the testimony for the State it was shown that the seals on the door of the car in question were broken by appellant and his companion on the occasion of the alleged burglary. We are forbidden by the statute to reverse any case for an error in the charge not calculated under the facts in that case to injure the rights of the accused. Art. 666 C. C. P.
We do not think the reference by the prosecuting attorney as evidenced by his argument to the jury, to the fact that appellant was a dangerous man, was wrong or unwarranted in view of the record and the admissions in the confession by appellant as to his criminal record in the past. Nor do we think the other argument, referring to what appellant's counsel may have thought or not thought as related to their having asked or not asked a special charge instructing a verdict of acquittal, would constitute any ground for reversal.
The motion for rehearing will be overruled.
Overruled.