Humphries v. State

DAVIDSON, Judge,

dissenting.

This is a conviction for the daytime burglary of the private residence of Harry Deaver.

According to the testimony of Deaver, his residence was broken into and a portable sewing machine and automatic rifle were taken therefrom on June 18, 1955, about eleven o’clock in the morning. Deaver described the location of his house as being about one mile east of Bluff Dale on Highway 377 and about 75 or 100 yards from and north of that highway which runs from “Stephenville through Bluff Dale” to Fort Worth.

The witness testified that the front wall of the house across the front porch was “white pine with varnish shellac on it . . . natural colored with the exception of the varnish.”

The sheriff of Erath County testified that Deaver’s house was constructed of new lumber and had a small porch across the front but that he did not know the color the house was painted.

About six months after the burglary, appellant was arrested by the sheriff of Erath County and charged with participating in the burglary. She was taken to the office of the district attorney, to whom she made two written confessions.

*605 In the first confession she admitted that some time in June, 1955, — the date or time of the day was not more definitely fixed —she, with her husband and one Bobby Pursley, left in an automobile traveling toward Stephenville; that just before they got to “Bluffdale,” Texas, the automobile was driven up on the right-hand side of the road to a house that had a front porch and an “oak colored front;” that Pursley and her husband (J. L. Humphries) went into the house while she stood watch and later returned to the automobile, one carrying a sewing machine and the other a gun which they put in the car.

In the second confession, which was very much like the first, the house which was entered was described as being “on the jrighthand side of the road, up on a little hill . . . the front of the house was finished in natural colored varnished lumber,” with a front porch across it.

In that confession appellant said that the sewing machine was sold by her husband to a “Mrs. Petty,” who lived in Fort Worth, and that the gun was given to her (appellant’s) son.

Heaver testified that the rifle which was stolen from his residence was brought and delivered to him by a “Mr. Roach.”

No Mr. Roach testified as to when or where he got such a rifle, nor was there any effort made to explain his possession thereof.

The appellant did not testify.

Was Deaver’s house, as described by him, the same house described in appellant’s confession?

Deaver’s house was on the right-hand side of Highway 377. The house that appellant said was burglarized was not shown to be on that highway or any other highway but was on a “road up on a little hill.” Deaver’s house was constructed of new lumber. The house which appellant described in her confessions had an oak-colored front, with lumber finished with natural colored varnish.

Deaver’s house was a private residence. Nowhere is it shown by appellant’s confession that the house her husband and Pursley burglarized was a private residence.

There is nothing in the confessions showing that the bur *606 glary was in the daytime, as the indictment alleged and which the state was required to prove.

It is and would be impossible to take the description of the house as contained in the confessions and therefrom locate or find Denver’s house.

It is apparent that the confessions do not show a daytime burglary of Denver’s private residence or any other house.

The fact that Denver’s private residence was burglarized in the daytime and a sewing machine and automatic rifle were taken therefrom was established by Denver’s testimony. Thus, by that testimony, one element necessary to constitute proof of the corpus delicti of that crime was established — that is, that Denver’s private residence was burglarized by the criminal act or agency of some person. But proof, merely, of that fact is not sufficient to establish the corpus delicti. It must be shown that the accused was a guilty participant or criminally connected with the commission of that crime. The facts fail to so show.

In addition to the foregoing, there is the unexplained possession by another of some of the property taken in the burglary of Denver’s house.

It must be remembered that as a general rule in burglary cases the unexplained possession of property recently stolen is sufficient to sustain a conviction of the possessor. Authorities collated supporting that proposition are numerous and will be found under 6 Tex. Digest, Burglary, Key 42(1). See: Blake v. State, 133 Tex. Cr. R. 451 , 112 S.W. 2d 732 ; Kelly v. State, 135 Tex. Cr. R. 509 , 120 S.W. 2d 1067 ; Tomerlin v. State, 141 Tex. Cr. R. 426 , 149 S.W. 2d 108 .

Under that rule the proof showing that “Mr. Roach” was found in the recent possession of the stolen rifle constituted such an outstanding hypothesis of the guilt of another as to preclude appellant’s conviction on circumstantial evidence, unless and until that outstanding hypothesis had been disproved or explained in consonance with the innocence of the possessor of the rifle.

No person ought to be guessed, presumed, or supposed into the penitentiary. The state is under the burden of establishing, by proof, the guilt of the accused. The state has not *607 met that burden here. That it has not done so is no fault of the judiciary.

The conviction ought not to be permitted to stand upon this record.

I respectfully dissent to the affirmance of this case.