Allison v. State

• Decision Date: 20 December 1922
• Docket Number: (No. 7000.)
• Citation: 263 S.W. 604
• Parties: ALLISON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 604

263 S.W. 604

ALLISON v. STATE.

(No. 7000.)

Court of Criminal Appeals of Texas.

December 20, 1922.

Rehearing Granted June 29, 1923.

State Rehearing Denied June 25, 1924.

Appeal from District Court, Milam County; John Watson, Judge.

Raymond Allison was convicted of receiving and concealing stolen property, and he appeals. Reversed and remanded.

R. Lyles, of Cameron, and Robt. M. Lyles, of Groesbeck, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Milam county of receiving and concealing stolen property of the value of more than $50, and his punishment fixed at two years in the penitentiary.

The indictment contained three counts; one charging theft of said property, another the receiving of said property from Bryant Walker and Mike Nichols and concealing same, and the other charging the receiving of said property from some person to the grand jurors unknown. The trial court submitted only the second count. Appellant's contentions appear in ten bills of exception which we consider in the order same appear in appellant's brief.

It is urged that the evidence does not support the verdict. Without detailing the testimony of individual witnesses it appears from the testimony of the state that on Tuesday night December 14, 1920, the store of the Thorndale Mercantile Company was burglarized, and property exceeding $1,000 in value taken therefrom. The back door of said store opened upon an alley, and said door was broken. A witness who knew Bryant Walker and Mike Nichols swore that he saw them in Thorndale Tuesday afternoon before the burglary; that they were in a green Essex touring car, and were accompanied by another man unknown to witness. Witness did not know appellant. Another witness testified that on the same afternoon he saw Mike Nichols, Bryant Walker, and another man whom he did not know drive into the alley which ran behind the Thorndale Mercantile Company's store. Another witness testified that between 1 and 2 o'clock that night he saw a green Essex car in Thorndale going out toward Cameron on the Cameron road. The next day after said burglary appellant, Mike Nichols, and Bryant Walker drove a green Essex touring car to Taylor, in Williamson county, and from there by Thrall and on to Cameron. They met a Miss Hawes at Taylor, and carried her to Cameron, where the party spent the night of Wednesday the 15th. The next morning said party drove out to the home of appellant's brother with whom he made a crop during the year 1920, and in the room which had been occupied by appellant Miss Hawes testified there were five suit cases up over some matting resting on the rafters. The suit cases were brought down, opened, and large quantities of men's and women's clothes appeared. Bryant Walker gave Miss Hawes a coat, and himself put on a shirt coming out of said suit cases, and Miss Hawes said she saw appellant trying on a pair of new shoes, and saw Mike Nichols trying on a hat. From this place the party went back to Cameron, and from Cameron to Rogers in said green Essex touring car. After spending the night in Rogers, Miss Hawes went back to her home in San Marcos. The next appearance of appellant in this record is when he was arrested in Oklahoma in the early part of the week following the burglary. He was in company with Mike Nichols, and they had the green Essex touring car with them. On Monday of said week the officers found in a sand bank, about 100 or 150 yards from the house where Miss Hawes testified she saw the five suit cases above mentioned, five suit cases and a bundle containing overcoats. This property was afterwards identified by the owners of the burglarized store as being their property, and that which was taken the night of the burglary. The coat given to Miss Hawes was also identified as part of the stolen property. When appellant was arrested in Oklahoma he had on a pair of new Edwin Clapp No. 7 brown shoes. Said shoes were produced in court upon his trial, and there examined by the clerks and proprietors of the burglarized store. These people testified that they handled the Edwin Clapp shoe, and one of them said that on the afternoon before the burglary he showed a pair of brown Edwin Clapp shoes No. 7, having the same width and last as the pair taken off the feet of appellant when arrested, and that the shoes were taken on the night of the burglary. Said witness further stated that in their shoes the name "Thorndale Mercantile Company" was written or stenciled, and that the shoes contained the stock number. At a place in the pair of shoes taken from the feet of appellant, corresponding with the place in which the words "Thorndale Mercantile Company" were placed by the owners of said store, was found where with a knife or other sharp instrument a name had been erased. The stock number of the pair of shoes found upon appellant had also been erased with ink or indelible pencil. We have stated this much of the testimony in order that it may be understood why we find ourselves unable to agree with appellant's contention that the evidence does not support the jury's verdict finding the appellant guilty in this case. He did not take the stand and testify. His defense appears to have been an alibi, and two witnesses testified that they saw him in Cameron and carried him with them from Cameron to Rogers on the night of the 14th of December, 1920. On cross-examination these witnesses admitted that their attention to this date was in no wise fixed or attracted until after appellant had been arrested, and after he made bond and came to each of them and reminded them of the date. The wife of appellant's brother, at whose house he had been living, and near whose house the stolen property was found buried by the officers, testified that her husband was at home all during the night of December 14th. In addition to the above testimony a grip belonging to appellant and containing letters addressed to him and some of his clothes, was found by the officers at the house of his brother on the occasion of their visit and the finding of the buried and stolen property.

By a bill of exceptions appellant complains that Officer Blaylock was allowed to give testimony of the finding of the alleged stolen property, and to relate things told him by Earl Allison in the absence of the accused. An examination of bills of exception Nos. 8 and 9, setting forth appellant's contention in this regard, fails to disclose any statements made to the officer by Earl Allison. In our opinion it was permissible for the sheriff to tell of the finding of the stolen property, its location and condition when found, and that Earl Allison was present when he found same. The fact that appellant was not present in no way affects the admissibility of such evidence.

In the main charge the court gave the following instruction:

"In this case the witnesses John Worley, L. L. Blaylock, Gus Newton, Bill Meredith, Rufus Milligan, and Cal Gregory have testified to certain facts indicating the presence of Mike Nichols and B. W. Walker in the town of Thorndale on the afternoon preceding the night of the alleged theft and at times, places, and under circumstances when the defendant was not shown to have been present, and to the flight of said B. W. Walker and Mike Nichols.

"Now this testimony was permitted for the purpose of enabling you to determine whether or not the property described in the indictment was acquired by the said B. W. Walker and Mike Nichols under such circumstances as that the acquisition thereof comes within the meaning of the term theft, and as to whether or not the said defendant, Raymond Allison, knowing it to have been so acquired, received said property from the said B. W. Walker and Mike Nichols, and if you consider such testimony at all, you will consider it for no other purpose than that herein mentioned."

The giving of this charge was an error against the state. There was nothing in the testimony of any of the witnesses named which should have been limited in the charge. The testimony of the owners of stolen property to the fact of the loss and recovery and identification thereof in most cases will be a narration of facts and acts transpiring out of the presence of the taker of the goods or the breaker of the house, but such evidence needs no limitation in the charge. The testimony of witnesses to the finding of stolen property and a description of its condition and location when found, and of its return to the owner, though this be a narration of things transpiring in the absence of the alleged thief, needs no limitation in the charge. The effect of such evidence is to prove issuable facts. This court has always held that any testimony legitimately showing the theft of the property by those from whom the illegal receiving is alleged in a case such as the one before us would be admissible against the receiver upon his trial, and, when there is such evidence as the confession of the alleged thief or record testimony of his conviction, we have held it proper to limit the purpose of such evidence as affecting only the question of the alleged theft. The injury of a failure to so instruct the jury would be questionable, unless something appear in such evidence which might have reasonably been given an effect beyond mere proof of the guilt of the original taker. In Tucker v. State, 23 Tex. App. 518, 5 S. W. 180, where a self-incriminating statement made by the alleged taker of...