Opinion
No. 17566.
Delivered May 8, 1935. Rehearing Denied June 19, 1935.
1. — Burglary — Evidence.
In prosecution for attempted burglary, permitting officer to testify that he returned to the scene of the burglary in the early morning and found a pinch bar, held not error, where it was shown that the bar was found along the course defendant traveled when he was attempting to escape.
2. — Same.
In prosecution for attempted burglary of a drug store, permitting the State to prove that a witness went back to drugstore several hours after the attempted burglary and found some ten-inch pliers, held, under the facts, not error.
Appeal from the District Court of Brown County. Tried below before the Hon. E. J. Miller, Judge.
Appeal from conviction for attempted burglary; penalty, confinement in penitentiary for two years.
Affirmed.
The opinion states the case.
H. R. Bishop, of Forth Worth, and Baker Baker, of Coleman, for appellant.
Lloyd W. Davidson, State's Attorney, of Austin, for the State.
The offense is attempted burglary; the punishment, confinement in the penitentiary for two years.
The circumstances were sufficient to show that shortly after midnight on the third of March, 1934, appellant, in an effort to commit burglary, cut a screen and raised a window of a drug store occupied and controlled by Roy Chinn. Appellant did not testify and introduced no witnesses.
Two bills of exception are brought forward. It is shown in bill No. 1 that an officer testified, over appellant's objection, that he returned to the scene of the burglary in the early morning and found a pinch bar. It appears that the bar was found along the course appellant traveled when he was attempting to escape. Bill No. 2 recites, in effect, that the State proved, over appellant's objection, that one of the witnesses went back to the drugstore several hours after the burglary and found some ten inch pliers. We think the testimony shown in said bills was relevant and material.
The judgment is affirmed.
Affirmed.
MORROW, P. J., absent.
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.
Appellant makes a motion for rehearing, setting up that we erred in our disposition of his two bills of exception. They have again been considered and were correctly disposed of in the original opinion. The facts amply show the alleged burglarized house to have been under the care, control and management of the alleged owner.
The motion for rehearing is overruled.
Overruled.