
    FETTERS v. STATE.
    (No. 11340.)
    Court of Criminal Appeals of Texas.
    Dec. 14, 1927.
    1. Burglary ©=>42(l) — Unexplained recent possession of stolen property obtained from burglarized premises will support burglary con- . viction.
    The unexplained recent possession of stolen property obtained from burglarized premises will support a conviction of burglary, and it is not necessary to show that defendant took all of the missing property, or that all of it was found in bis possession.
    2. Burglary ©=>45 — Whether property found in defendant’s home was that taken or used in burglary held for jury.
    Whether property found in the defendant’s home was the same as that taken or used in the burglary with which defendant was charged held, for jury.
    3. Criminal law ©=>742(1)— Credibility of witnesses in burglary trial is for jury.
    The credibility of witnesses in a burglary trial is for the jury.
    4. Criminal law ©=>1211 — “Conviction” as used in Code provision relative to increasing punishment if accused has been convicted before, refers to final conviction (Pen. Code 1925, art. 62).
    The term “conviction,” as used in Pen. Code 1925, art. 62, in the provision relative to increasing the penalty of a defendant if he has been convicted of the same offense before, refers to.a final conviction.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Convicted — Conviction^]
    5. Criminal law ©=>1211 — Judgment of conviction, within meaning of statute relative to increasing penalty if defendant has been convicted before, does not become final, where judgment is suspended, until suspension has been revoked; “final conviction” (Pen. Code • 1925, art. 62).
    A judgment of conviction which has been suspended does not "become “final,” within the meaning of Pen. Code 1925, art. 62, relative to increasing the penalty if a defendant has been convicted of the same offense before, until the suspension has been revoked, and is not regarded as a final judgment.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final.]
    6. Criminal law ©=>1202(3) — To increase burglary penalty because of previous conviction where prior sentence was suspended, state must allege and prove suspension and its revocation (Pen. Code 1925, art. 62).
    In order, under Pen. Code 1925, art. 62, to increase the punishment for burglary because of the defendant’s having previously been convicted of the same offense, such prior sentence having been suspended, the state must allege and prove the suspension and its revocation.
    7. Criminal law ©=>1202(7) — In showing burglar’s prior conviction so as to enhance penalty, evidence that witness had seen defendant in penitentiary.hpld harmless, if error (Pen. Code 1925, art. 62).
    In state’s showing defendant’s prior conviction for burglary so as to enhance, under Pen. Code 1925, art. 62, the penalty to be inflicted for burglary conviction, evidence that the witness had seen the defendant in the penitentiary held' harmless, in state’s attempt to show that the former conviction was final, even if such admission of evidence were error, since state was entitled to prove final conviction which required incarceration in the penitentiary.
    8. Witnesses ©=>406 — That evidence admissible to impeach defendant’s witness also impeached state’s witness did not render it inadmissible, in absence of showing’of prejudice.
    . In burglary prosecution, where the state introduced evidence to impeach the testimony bf •defendant’s • wife relative to his being at home on the night of the burglary, the fact that such impeaching testimony also impeached the state’s own witness did not make it inadmissible, in the absence of showing of prejudice.
    Commissioners’ Decision. ■
    Appeal from District Court, Wichita County ; P. A. Martin, Judge.
    Marion Fetters was convicted of burglary, and he appeals.
    Affirmed.
    Allred & Allred, of Wichita Falls, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MAETIN, J.

Offense, burglary; penalty, 12 years.

The insufficiency of the evidence to sustain the conviction is claimed by appellant. A brief resumé of the main incriminating facts is as follows:

The store of J. R. Parker was burglarized on the night of February 17, 1927. The knob was knocked off the safe and was found on the floor wrapped in tape. Four dollars and 'ten cents in silver and something like one hundred twenty-five to one hundred forty pennies were taken. A “chuck pin” used on the meat block disappeared, Parker testified:

■ “It was in our store on the night of February 17, 1927. * * * It was in a box in the corner of the building, inside of the building. * ⅜ * The piece of tape I have here that you have handed me compares with the piece that I found on the knob of the safe, it is just the same.”

Officers testified on the morning after the burglary that they visited the home of appellant, who, with his wife and two other persons, was in bed asleep at 9 o’clock in the morning. They found $4.10 in silver and some pennies on the table in the kitchen. They also found a sledge hammer and a chisel and a roll of tape. The roll of tape was the same kind as that found on the knob of the burglarized safe. The silver found corresponded in amount and in denomination to the missing money from the burglarized premises. The “chuck pin” identified'by the witness Parker as his own appears to have been found in the car of- appellant.

Unexplained recent possession of stolen property obtained from burglarized premises will support a conviction of burglary. Rippey v. State, 86 Tex. Cr. R. 539, 219 S. W. 463. Nor is it necessary to show that appellant took all the missing property, or that all of the missing property was found in his possession. Id. The evidence of identification and other incriminating circumstances, though not' strong, were such that we do not feel authorized to substitute our opinion for that of the jury who heard the testimony and are the exclusive judges of the credibility of the witnesses. There was an explanation made of appellant’s possession, but all these matters were jury questions and have been found by the jury against appellant, and, there being evidence in our opinion sufficient to sustain such verdict, there was no error in the trial court’s action in overruling appellant’s contention. Hooton v. State, 53 Tex. Cr. R. 6, 108 S. W. 651; Dynne v. State, 53 Tex. Cr. R. 375, 111 S. W. 729.

The state sought to enhance the punishment of appellant, under article 62 of the Penal Code 1925, reading as follows:

“If it be shown on the trial of a felony less than capital that the defendant has been before convicted of the same offense, or one of the same nature, the punishment on such second or other subsequent conviction shall be the highest which is affixed to the commission of such offenses in ordinary cases.”

The indictment alleged and the proof showed that appellant had been convicted of burglary in the state of Oklahoma and his sentence originally suspended but after-wards revoked. Objection'was made both to the presence of the allegation in the indictment and to proof of the revocation of the original suspended sentence. The term “conviction,” as used in article 62 of the Penal Code, refers, we think, to a final conviction. Brittian v. State, 85 Tex. Cr. R. 491, 214 S. W. 351. A judgment of conviction which is suspended does not become final until the suspended sentence has been revoked and is not regarded as a final judgment. Thomas v. State, 87 Tex. Cr. R. 153, 219 S. W. 1100; Brittian v. State, 85 Tex. Cr. R. 491, 214 S. W. 351. It therefore follows that it was necessary for the state to allege and prove a suspension of sentence and its revocation in order to show' that a final judgment had been entered against appellant for the crime of burglary.

Further complaint is made of the reception in evidence of proof by a witness that he saw appellant in the Granite State Penitentiary, in the state of Oklahoma, in the years 1919 and 1920. The order revoking his suspension of sentence appears to have been entered on the 28th day of April, 1919, and by its terms he was committed to the State Penitentiary at Granite, in the state of Oklahoma, for a term of 4 years. This testimony was admissible, we think, to establish the identity of appellant as being the person who was finally convicted of the crime of burglary in a foreign state. This conclusion appears to be supported by some of the cases cited by appellant, notably Johnson v. Commonwealth, 209 Ky. 181, 272 S. W. 428, and Tall v. Commonwealth (Ky.) 110 S. W. 425. We see no reason, however, to hold that such testimony would be of such prejudicial character as to require reversal even if inadmissible, since the state was entitled to prove his final conviction which, required his incarceration in the penitentiary.

The appellant used his wife as a witness to prove that she was at home on the night of the burglary; that he came in at about 10 o’clock p. m. and was at home throughout the night. The state put Opal Morgan on the witness ( stand and proved substantially the same facts by her. Thereafter the state introduced a Mr. Smith, who testified that he saw both Opal Morgan and appellant’s wife at his filling station after 10 o’clock p. m. the night of the burglary, and that they took him home, and that'he was with them after 10:30 and until about 11:15. The testimony of Smith was admitted over objection of appellant, it being urged that by his testimony the state was permitted to impeach its own witness, Opal Morgan. Such testimony was clearly admissible to impeach the wife of appellant. That it may have had the effect claimed by appellant would, we think, not render it inadmissible, in the absence or some showing of prejudice.

We have examined all of appellant’s bills of exception, and, finding no error in any of them, the judgment is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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