Allen v. State

• Decision Date: 07 April 1915
• Docket Number: (No. 3500.)
• Citation: 175 S.W. 700
• Parties: ALLEN v. STATE.
• Court: Texas Court of Criminal Appeals

175 S.W. 700

ALLEN v. STATE.

(No. 3500.)

Court of Criminal Appeals of Texas.

April 7, 1915.

Appeal from Montague County Court; Homer B. Latham, Judge.

Arthur Allen was convicted of receiving stolen property, and he appeals. Reversed.

W. T. Russell, of Nocona, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of receiving and concealing stolen property, and his punishment assessed at 15 days' imprisonment in the county jail and a fine of $50.

It is made to appear by the record that the store of Flemming Bros., under the care and control of Sam Flemming, was burglarized on the night of March 2d, and, among other things, eleven neckties and three pairs of socks stolen therefrom. Henry Hale, appellant, and some others were arrested, charged with having committed the offense. Henry Hale made an agreement with the state to testify against appellant and others, and he was not prosecuted. Appellant was indicted, charged with burglarizing Flemming Bros.' store. He was tried for that offense and acquitted; he testifying on that trial that on the night of the burglary he (appellant), Henry Hale, and Henry Harper and others went to an entertainment in Bonita. Upon their return they went to a restaurant, and after they had been there awhile Henry Hale called him (appellant) and Henry Harper to one side and told them he had broken open Flemming Bros.' store, and handed him a hat, some neckties and socks, and he took them and hid them under his coat, and carried them to a barn on Mr. Langford's place. The jury evidently believed what he said, and acquitted him of the charge of burglary. The state then indicted him, charging him with receiving and concealing the property, knowing it was stolen, To this charge appellant entered a plea of former jeopardy, based on his acquittal of the offense of burglary.

In many ways appellant complains of the action of the court in failing to submit this plea to the jury, to the failure of the court to give his special charges on this issue, and to the action of the court in instructing the jury not to consider the plea of former acquittal. These bills present no error; for the Code of Criminal Procedure specifically provides that a prosecution and conviction for burglarly even will not bar a prosecution for theft or any offense growing out of or connected therewith. In Loakman's Case, 32 Tex. Cr. R. 564, 25 S. W. 22, this question is discussed in an opinion by Judge Davidson, and decided adversely to appellant's contention, and this decision has always been followed, and necessarily so by reason of the provisions of our Code of Criminal Procedure.

We do not deem it necessary to discuss but one other question raised by appellant; for it, and it alone, presents error. It appears in the trial...