
    HENDERSON v. STATE.
    (No. 7656.)
    (Court of Criminal Appeals of Texas.
    March 28, 1923.
    Rehearing Denied May 2, 1923.)
    
      Í. Criminal law <©=31160 — Decision of trial court on issue as to whether juror was resident of state held binding on appeal.
    On a hearing of motion for new trial, the trial court’s decision for the state on an issue of fact raised by controverting affidavits as to whether a juror was a citizen of the state, binds the appellate court.
    2. Criminal law <©=»1160 — Intent in entering house, question of fact for jury, and its finding approved by court will not be disturbed.
    The intent with which accused charged with burglary entered a house is a question of fact for the jury, and, where it is alleged that the burglarious entry was made with intent to commit theft, the jury’s finding that the entrance was made ’with the intent to commit theft wifi not be disturbed where such finding has been approved by the trial court and there is nothing in the evidence to indicate a contrary intent.
    On Motion for Rehearing.
    3. Burglary <©=341 (3)— Evidence held to justify finding that accused made entrance with intent to steal. 1 >'■ " ■
    Evidence, in a prosecution of burglary of private residence with intent to commit theft, held) to justify a finding that accused’s intentions in entering were to commit theft.
    Appeal from District .Court, Lamar County; Ben H. Denton, Judge.
    Jim Henderson was convicted of a crime, and appeals.
    Affirmed.
    H. B. Birmingham and Chas. Roach, both of Paris, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   HAWKINS, J.

Conviction is for burglary of the private residence of Lela Finney with intent to commit theft. Punishment was fixed at five years in the penitentiary.

The charge of the court was not exeepted to. One special - charge was requested, the refusal of which cannot be reviewed. The special charge does - not show exception because Of its refusal, and no bill to that effect appears in the record. Craven v. State (Tex. Cr. App.) 247 S. W. 515; Brooks v. State (Tex. Cr. App.) 247 S. W. 517; Hickman v. State (Tex. Cr. App.) 247 S. W. 518.

In the motion for new trial complaint is ma® that N. P. Duke, one of the jurors, was, Sot a citizen of the state of Texas, nor a freeholder in the state, nor a householder in the county at the time he served on the jury. The affidavit of the juror is attached to the motion in’ .which' he does not undertake to set out the facts, but contains. the statement that at the time he served on the jury “he was not a citizen of the state of Texas, but at said time was a citizen and resident of the state of Oklahoma.” This ground of the motion was controverted by' the state. Attached to such controversion are the affidavits of W. R. Bills, a neighbor of the juror Duke, and that of R. D. Duke, his son'. The controverting affidavits state the facts and show that said juror was a citizen of the state of Texas and a householder in Lamar county at the time of the instant trial. An issue of fact having been raised with reference to the matter upon hearing the motion, and the court .having decided it in favor of the state, we would be bound thereby under the circumstances presented in this record. Even if the affidavit of the juror Duke should be taken as true, we do not believe under the authority of Squyres v. State (Tex. Cr. App.) 242 S. W. 1024, and authorities therein cited, that appellant would.be ntitled to a new trial by reason of the facts stated therein.

The only other contention is that the verdict is not supported, by the evidence. Appellant and all the parties involved were negroes. On the. night, of the alleged burglary Lela Finney attended some religious services with a neighbor woman. At the time they left the house of the latter, appellant was present and inquired where they were going, and was informed they were going to church. In a few miutes after they had gone, a noise at the house of the Finney woman attracted a neighbor woman’s attention. She discovered some one tearing the screen off a window, and saw him raise the window and enter the house. She immediately sent a party to notify Lela Finney, who returned, and appellant made his escape out the back door. It appears that an effort had been made to effect an entrance at the back of the house, the screen on that. door also having been cut. No property was taken. A rug on the floor appeared to have been rolled up and some chairs overturned. The officers who arrested appellant testified that he had been drinking and was to some extent intoxicated. A white lady for whom appellant worked testified that he was so drunk he was not able to wash the dishes and she had sent him home. The two negro women who saw him immediately before the burglary at the time he learned that Lela Fin-ney was going to church testified that they saw nothing in his conduct at that time to indicate that he was intoxicated. The evidence discloses that he seemed to have had no trouble in making a rapid exit from the house when Lela Finney and other parties reached there after having been informed that some one had broken in.

The court pertinently chargéd the jury that'if ¿ppellant entered the. house f or ; any other purpose than to commit the specific crime of' theft, or if the jury entertained, a reasonable doubt upon this point, they should acquit him. In section 2344, p. 1281, Branch’s Ann. Pen. Code, is the following announcement of the general rule incident to the question being considered.

“The intent with which the defendant entered the house is a question of fact for the jury, to be gathered from all the circumstances of the case. When it is alleged that the burglarious entry was made with intent to commit theft, and the jury have found that such entry was made with such intent, and such finding has been approved by the trial court, the. judgment of conviction will ordinarily be sustained if there is nothing in the testimony to indicate that such entry was made with any other intent.”

The authorities collated by Mr. Branch support the statement just quoted, and seem to be applicable to the instant case.

Finding no error in the record, the judgment is affirmed.

On Motion for Rehearing.

MORROW, P. J.

The case of Freeman v. State, 86 Tex. Cr. Rep. 331, 216 S. W. 878, and other cases to which appellant refers in his motion for rehearing, are ones in which the evidence suggested that the entry was for a purpose other than theft. For example: In Freeman’s Case, there were- two women in bed near the window through which Freeman attempted to enter. He was familiar with the surroundings, and, as stated in the opinion, the evidence wa'S probably more cogent to establish an intent to rape than to steal. A similar state of facts is revealed by the record in Sedgwick’s Case, 57 Tex. Cr. R. 420, 123 S. W. 702. So in Mitchell’s Case, 33 Tex. Cr. R. 575, 28 S. W. 475, the accused entered the house and caught hold of the foot of the girl who' was asleep therein. She raised an alarm and he fled. A similar state of facts was also before the court in Moore’s Case (Tex. Or. App.) 37 S. W. 747. In the case in hand, Lela Finney, the owner of the house, was not at home. This was known to the appellant. The theory that he made the forcible entry for an an assignation with Lela Finney is nullified by the knowledge on the part of the appellant that she was away from home. Moreover, on her arrival he fled. There was some disarrangement of the property, including the rolling or folding of a rug which may or may not have been done in preparation for its removal. It is believed that the facts bring the ease within the principle declared in Love’s Case, 82 Tex. Cr. R: 412, 199 S. W. 623, in which reference is made to a quotation by Judge Davidson of this court in the opinion in Alexander’s Cáse, 31 Tex. Cr. R. 359, 20 S. W. 756. The quotation.reads thus:

“Though' there-was no direct evidence of the -intent, it might be inferred from, the surrounding circumstances. The weight to be given to these was a question properly left to the jury; and when a person enters a building through a window at a late hour of the night, after the lights are extinguished, and no explanation is given of his intent, it may well be inferred that his purpose was to commit larceny, such being the usual intent under such circumstances.”

Moore’s Case, 52 Tex. Cr. R. 366, 107 S. W. 355, which was written by the same judge that prepared the opinion in Sedgwick’s Case relied on by appellant, illustrates the distinction to which we have, adverted. It was held that the proof showing the intent to have been evil, its purpose was discernible from circumstances, and that the jury hearing the evidence, and having concluded it to be sufficient to repel any intent save that of theft, was not to be disturbed on appeal. The facts in that case were conceived to be no stronger in favor of the state than those ■of the instant case.

The motion for rehearing is overruled. 
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