Court of Criminal Appeals of Texas, 1928

Morton v. State

Morton v. State
Court of Criminal Appeals of Texas · Decided May 16, 1928 · Hawkins, Lattimore
7 S.W.2d 98; 1928 Tex. Crim. App. LEXIS 906 (South Western Reporter, Second Series)

Morton v. State

Opinion of the Court

LATTIMORE, J.

Conviction for burglary ; punishment, two years in the penitentiary.

The only complaint in the record is of the insufficiency of the testimony. We are not in accord with this complaint. Appellant and a companion were intoxicated, and drove up to the home of prosecuting witness. Appellant got out of the truck, climbed over the fence, and started across the yard toward the house in which the woman was located. She saw him coming, and fastened the screen door. She called to him and asked him what he wanted. Neither of the men replied. She then asked him to get out of her yard, and he sprang up on the .porch and said, “G--d d-n you, I’ll f-k you, you s- of a b-.” She screamed. Appellant kept on cursing and coming toward the door, and the woman closed the shutter of the door and. went to the fear of the house. She heard the' front door jerked open, and grabbed her baby and went out through the rear and across the highway over to her mother’s. Parties who examined the door of the woman’s house sa id the hook that held the screen door to was jerked off. Appellant testified that he was drunk and did not know what occurred. We have been unable to find any error in the record, and believe same sufficiently shows a burglary of the house in question with intent to commit the offense of rape.

No error appearing, the judgment will be affirmed.

070rehearing

On Motion for Rehearing.

HAWKINS, J.

We have again examined the testimony in view of' appellant’s insistence that the facts are insufficient to show that appellant entered the house with the specific intent to commit the offense of rape. There is evidence in the record which, if accepted by the jury, would have authorized them to find that appellant was intoxicated and stopped at the house in question in the search for more liquor, and to have attributed the outrageous language used by him to a drunken and reckless act; on the other hand, such language and his subsequent *99act of breaking and entering tbe house against the forbiddance of the lady living there are consistent with the unlawful intent charged against him. Where from the evidence the jury may reach either of two conclusions as to the purpose of accused whose guilt or otherwise is to be measured by the intent with which he acted, it is beyond the province of this court to set aside a verdict because the jury reached that conclusion which is against the interest of accused.

Appellant’s motion for rehearing overruled.

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