Court of Criminal Appeals of Texas, 1894

Willis v. State

Court of Criminal Appeals of Texas · Decided April 11, 1894 · Simblins

25 S.W. 1119; 33 Tex. Crim. 168; 1894 Tex. Crim. App. LEXIS 69 (South Western Reporter)

Counsel

Rice Bartlett, for appellant, in their very able brief, submitted among others the following propositions, viz: 1. The court erred in its charge to the jury in that part thereof as follows, to wit: "You are further charged, that the structure in controversy is in contemplation of law a house, and in your consideration of this case you will so consider it." 2. It is the duty of the court to submit all questions of fact to the jury; and it is error for the court to instruct the jury that any fact in evidence has been proven, no matter how strong the evidence may be; and especially is it reversible error where there is conflicting testimony on this, the pivotal point in the case. Skidmore v. The State, 43 Tex. 93 ; Harris v. The State, I Texas Crim. App., 74; Searcy v. The State, 1 Texas Crim. App., 440; Hall v. The State, 13 Texas Crim. App., 269; Harwell v. The State, 22 Texas Crim. App., 251; Alexander v. The State, 24 Texas Crim. App., 126; Blair v. The State, 26 Texas Crim. App., 393; Ezzell v. The State, 29 Texas Crim. App., 523. R.L. Henry, Assistant Attorney-General, for the State.

Opinion of the Court

*170 SIMBLINS, Judge.-

Appellant was convicted, of burglary, and sentenced to three years in the State reformatory, from which he appeals.

1. The court did not err in charging the jury in this case that the structure burglarized was a house. The undisputed testimony shows the structure to come fully within the term “house,” as defined in article 709 of the Penal Code. It is described as a fruit stand built somewhat in the shape of a piano box, about eight feet high, with shelves and counters; and the proprietor could, in making sales, stand inside or out of the structure, as he desired. It was unnecessary to submit a question to the jury about which there could be no dispute.

2. Nor did the court err in refusing the charge asked by appellant, to the effect that the State must prove the want of consent of Mrs. Conte and her daughter. The evidence shows that James Yerdrine managed the business in the absence of G. Conte, the owner, and the indictment charged the house to be occupied by the said Verdrine. The fact that his mother and sister assisted in the sales and carrying on the business was immaterial, so far as the indictment was concerned. Code Crim. Proc., art. 426; Willson’sCrim. Stats., secs. 1258, 1259. If appellant had the consent of Conte’s wife or daughter, it was defensive matter to be shown on trial.

The judgment is affirmed.

Affirmed.

Judges all present and concurring.

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