Opinion
No. 9000.
Delivered March 11, 1925. Rehearing denied April 15, 1925.
1. — Burglary — Confessions — Inspection of.
Where a confession made by the appellant is in possession of the states attorney, there is no law nor rule of practice in this state which requires the state to deliver such confession to counsel for the accused, for his inspection, until same is offered in evidence.
2. — Same — Bills of Exception — Not Considered When.
Where a bill of exception complaining of the admission of appellant's confession is in question and answer form, and also recites that the State read a "portion of the statement" without pointing out what part was read and what part omitted, nothing is properly presented to this court for review.
3. — Same — Night Time Burglary — Slightest Force, Sufficient.
Where a burglary in the night time is charged, the slightest force applied to the building to secure an entry thereto, is sufficient, and such force can be established by circumstantial, as well as by direct evidence.
4. — Same — Confession of Accused — Corroboration.
A confession of a defendant that he burglarized the building, and the recovery of articles taken from the building by the burglars, is sufficient corrobation of appellant's confession, as is proof that the building was entered at night by force, and articles of value taken therefrom.
ON REHEARING.5. — Same — Evidence of Force — Sufficient.
Where the proof showed that a window pane of glass was taken out of a window and entry made, and that egress was through the door, the evidence is sufficient to show that a burglary was committed by force applied to the building, and is sufficient corroboration of appellant's confession.
Appeal from the District Court of Wichita County. Tried below before the Hon. H. R. Wilson, Judge.
Appeal from a conviction of burglary in the night time; penalty, two years in the penitentiary.
The opinion states the case.
W. L. Scott, of Olney, T. E. Robertson, of Wichita Falls, for appellant.
Tom Garrard, State's Attorney, and Grover C. Morris, Assistant State's Attorney, for the State.
The offense is burglary; punishment, two years in the penitentiary.
Appellant had made a confession. Bill number one recites that at the beginning of the trial appellant through his counsel advised the court that he understood the State was relying in part upon this confession and requested permission to inspect the same at that time and asked the court to direct counsel for the State to turn it over to appellant's counsel for that purpose. This the court declined to do and appellant complains at this ruling. We are advised of no law which would require the court at that stage of the proceeding to command counsel representing the State to deliver the confession to counsel for appellant for inspection. When the State offered it in evidence counsel for the defense was entitled to inspect it in order that he might offer objection, if any he had, to its introduction. There is no complaint that he was deprived of such privilege. The bill presents no error.
Bill number two might be disposed of by stating that the same is in question and answer form, and for this reason is not entitled to receive consideration. It is with reference to the admission of appellant's confession, and recites that after the matters occurred which are set out in the questions and answers the State read a "portion of the statement" to the jury. The bill is silent as to what part was read or what part was omitted.
It is seriously urged that the evidence does not support the conviction on the ground that the offense of burglary is not shown to have been committed by any testimony offered by the State unless it be by the confession of appellant, and that the burglary can not be proven by the confession alone.
A storehouse belonging to Emmet Archer was entered at night and certain articles of merchandise taken therefrom. Some of it was later recovered in an outhouse on premises where appellant lived with his mother. Mr. Archer testified that the store was locked when he left it that night; that whoever entered it came through the rear door; that no one had his consent to make such entry nor to take the things which were removed from the house. Appellant's confession recites that he and two other parties "broke into the hardware store;" that they took several pocket knives, four flashlights and a 22 target rifle therefrom. Appellant lived at Wichita Falls. The store burglarized was situated at Electra. The confession continues to the effect that they brought the articles back to Wichita Falls, hid some of it on the river, and took the rest to his (appellant's) house, and hid it in a chicken house on, as he says, "our premises." This is where some of the stolen goods were found; however, they had been discovered before the confession was made. The confession further states. "All three of us broke into the hardware store. We didn't have anyone's permission to go in there. We took out a window pane to get in."
We regret that we cannot agree that the offense is not shown save by the confession of appellant. It is made clear that the entry of the house occurred at night. The owner testified that the store was locked at the time he left and that the entry was made without his consent through the back door. It is true appellant says the entry was made by removing a pane of glass from the window. Whether the door was opened from the inside after this was done and the parties came in through the door would, in our judgment, be immaterial. If the door was locked it would be burglary, nevertheless, if the entry was made by unlocking the door and entering. Many cases are cited by appellant in which the court has held that the offense of burglary could not be established alone by the confession of appellant, but we think they have no application here. We think the testimony of the owner of the building shows a burglarious entry. The State does not rely upon the confession of appellant alone to show that a burglary was committed. We do not think it necessary to review the cases cited by appellant. Our conclusions here and the holdings expressed in them are not thought to be in conflict.
The judgment is affirmed.
Affirmed.
ON MOTION FOR REHEARING.
Appellant insists in his motion that if our opinion stand it will be taken as establishing the doctrine that force is not necessary when a burglarious entry at night is charged in the indictment. We do not so understand our opinion, but will try to make clearer the point. Mr. Archer owned a store which he testified was entered on the night of May 18, 1924. He said "They came through the rear door. The house was locked when I left that night. . . . I did not give any one my consent to enter it." Mr. Archer testified that a great deal of the property was recovered. In addition to the matter of the discovery of certain of the stolen property, appellant's confession was in evidence. Examining same, we observe that he not only said in terms that they broke into the store but appellant further stated that they took out a window pane to get in. It would appear plain that one could not take out a window pane for the purpose of effecting an entry into a building without thus using force to the building. Mr. Archer's statement that they entered through the rear door was but a conclusion on his part, evidently reached because of the fact that he found the rear door open. That appellant and his companions opened the rear door in order to afford them easy means of carrying from the store the plunder and loot which they took with them, would not change or affect the proposition that they committed burglary by force applied to the building when they took out the pane of glass and thus entered.
Being unable to agree with appellant's motion, and thinking the case correctly decided, the motion for rehearing will be overruled.
Overruled.