Primus Hamilton v. The State, 26 Tex. Ct. App. 206

Willson, Judge. The charging part of the indictment is as follows: “That Primus Hamilton, on or about the eighth day of August in the year of our Lord, one thousand eight hundred* and eighty-eight, in the county of Fannin, and State of Texas, did .then and there unlawfully at night, by force, threats and fraud, break and enter a railroad car, there situate and occupied and controlled by J. M. Booth, without the consent of the said J. M. Booth, and with the intent then and there fraudulently to take from said car corporeal personal property therein being and belonging to the said J. M.

Booth, from the possession of the said J. M. Booth, without his consent, and with the intent to deprive the said J. M. Booth, the owner of said corporeal personal property, of the value thereof, and to appropriate the same to the use and benefit of him the said Primus Hamilton.” Exceptions to the indictment were made and overruled, and a motion in arrest of judgment based upon supposed defects in the indictment was also made and overruled, and these rulings are claimed by the defendant to be erroneous.

The first objection made by defendant to the indictment is, that it does not allege expressly that the burglarious entry was made with the intent to commit a felony or theft. This objection is certainly not sustained by the record, as it will be seen by reference to the indictment above quoted that it directly and plainly charges that the entry was made with the intent to fraudulently take, etc., setting out all the elements of theft. In this respect the indictment is in the usual, approved form.

A second objection urged to the indictment is that it fails to allege to what railroad company said car belonged, and on what railroad said offense was committed; and in connection with this may be considered the third and last objection, which is that the indictment fails to designate or describe the car alleged to have been burglarized. We are of the opinion that these objections are not valid ones, and that the indictment is sufficient. We can see no reason why an indictment for burglarizing a railroad car should be more specific and certain than one for burglarizing a house.

In the case of a house it has been held that an indictment which described the house entered as “a certain house then and there occupied and controlled by” a named person, was a sufficient designation of the house. (Sullivan v. The State, 13 Texas Ct. App., 462.) It is not essential to allege or prove the ownership of the house or car, as it is immaterial who owned the same at the time of the entry. If it was occupied or controlled by the person named in the indictment, it matters not whether it belonged to him or some other person, or to a corporation.

If the evidence shows that more houses, or more cars, than one, of tho same general description given in the indictment, were burglarized, this does not vitiate the indictment for uncertainty, but the State might be forced to elect which one of the burglaries she would rely upon for conviction, and there would then be no difficulty in sustaining a plea of former acquittal or conviction in case of a subsequent prosecution for the same burglary. We are of the opinion that the indictment is in all respects a valid one. Opinion delivered October 24, 1888.

Amos Willis was a material witness, who testified in behalf of the State on the trial. His testimony is important, and, if credited, leaves no reasonable doubt of the defendant’s guilt of the burglary charged. Without his testimony the conviction would not be warranted by the evidence, as it is presented to us. It was claimed by the defendant on the trial, and is claimed here, that said witness was an accomplice in the burglary.

While the evidence may not, and in our opinion does not, prove conclusively that said witness was an accomplice in the crime, it nevertheless tends to show his complicity in it, and fairly raises that issue. Facts were in proof from which the jury might reasonably conclude that said witness was a particeps criminis, notwithstanding his positive assertion to the contrary.

The court having failed to instruct the jury in relation to accomplice testimony, the defendant requested a correct instruction which would have supplied the omission, but the requested instruction was refused upon the ground that the evidence did not call for or warrant it, and the defendant excepted, and reserved his exception by proper bill.

This failure and refusal of the court to submit to the jury, under proper instructions, the status of said witness and the rules applicable to his testimony in case the jury should believe him to be an accomplice, was material error, which would vitiate the conviction even had it not been excepted to; and because of this error alone the judgment is reversed and the cause is remanded. (Boren v. The State, 23 Texas Ct. App., 28.) Reversed and remanded,