1. Attempt to Commit Burglary with Intent to Steal — Consent of Owner — Detective. — On a trial for attempt to commit burglary with intent to steal, where it appeared that a pretended confederate had informed the owner of the proposed attempt, to which the owner replied, "Just let him come along and we will try and catch him; don't insist on his coming nor encourage him to come; let it be of his own free will and accord, and voluntarily; let him come ahead; don't stop him;" Held, that this was not giving consent by the owner to the entry of his house and the taking of his money therefrom. See this case as distinguished from Speiden v. The State, 3 Texas Criminal Appeals, 156.
2. Same. — It is not consent to the taking for the owner to obtain the aid of a detective, who, for the purpose of detection, joins the defendant in a criminal act designed by the defendant and carried into execution. Following Pigg v. The State, 43 Tex. 108.
3. Same — Charge. — On a trial for attempt to commit burglary with intent to steal, where it appeared that after the agreement between defendant and the pretended confederate to commit the crime the latter informed the owner of the conspiracy, and was employed by said owner to assist in the detection of the defendant, and the court charged the jury, "If you believe that without the knowledge or consent of the said McDowell (the owner), the said defendant Robinson and the said Cox (confederate) entered into an agreement to commit the offense of burglary, by breaking and entering said McDowell's house for the purpose of committing the crime of theft of the property described in the indictment, and that subsequent to such agreement and prior to such alleged attempt the said McDowell was informed of such agreement, if any such was made, and merely employed said Cox to assist in the arrest of defendant in the event he made the attempt alleged, and did not authorize said Cox to make such attempt, or authorize or consent to his influencing, inducing, or suggesting such offense to defendant, and that such attempt, if any, was not made in pursuance of any suggestion or influence of the said Cox, but that such attempt was made entirely in pursuance of and in compliance with an agreement made between defendant and Cox, before McDowell had any knowledge or information of such alleged intended attempt, then the employment of Cox to assist in the arrest, without giving consent to enter the house, would not entitle the defendant to an acquittal;" Held, said charge was correct, and in strict conformity with previous cited decisions of this court.
4. Evidence — Fact Case. — See evidence which, in the opinion of the court, is held amply sufficient to support a verdict and judgment of conviction for an attempt to commit burglary and theft.
DAVIDSON, JUDGE.
This conviction was for an attempt to commit the crime of burglary with intent to steal. Appellant proposed to one Cox, who informed McDowell, the owner of the premises to be burglarized and the money therein situated, of the intended burglary. McDowell replied to Cox by saying, "Just let him [defendant] come along and we will try and catch him, and not insist on his coming, and not encourage him to come; if he comes, let it be of his own free will and accord, and voluntarily." I just said, "Let him come ahead; not to stop him."
There is no conflict in the testimony of McDowell and Cox upon this issue.
Appellant was not induced by McDowell or Cox to commit the crime, but was the instigator and prime mover in the whole affair.
Under this state of case, appellant did not have the consent of the owner to enter his house or to take his money therefrom.
This is a different case from that of Speiden v. The State, 3 Texas Criminal Appeals, 156, and authorities cited. In Speiden's case, the defendant entered a bank at the solicitation of a detective rightfully in possession, and with the consent of the owner. There are no such facts in this case.
In Pigg's case, 43 Tex. 108, it was held, that "it is not consent to the taking for the owner to obtain the aid of a detective, who, for the purpose of detection, joins the defendant in a criminal act designed by the defendant, and carried into execution by actual theft." See also Johnson v. The State, 3 Texas Crim. App., 590; Allison v. The State, 14 Texas Crim. App., 123; Conner v. The State, 24 Texas Crim. App., 245.
The charge complained of is correct. It sets forth very clearly the rule contained in the cited cases. It follows, therefore, the court did not err in refusing special instructions requested by appellant, because they were not applicable to the facts of this case. Cox did not, either of his own motion or at the suggestion of McDowell, the owner, propose the burglary to the appellant, but simply agreed with him to commit the burglary, not intending or contemplating, at the time, its accomplishment.
The evidence is amply sufficient to support the verdict; the case was carried beyond mere preparation to enter the house, and shows an actual attempt to make an entry.
The judgment is affirmed.
Affirmed.
Judges all present and concurring.