Asner v. State

• Decision Date: 22 November 1939
• Docket Number: No. 20585.,20585.
• Parties: ASNER v. STATE.
• Court: Texas Court of Criminal Appeals

136 S.W.2d 822

ASNER v. STATE.

No. 20585.

Court of Criminal Appeals of Texas.

November 22, 1939.

Rehearing Denied February 21, 1940.

COPYRIGHT MATERIAL OMITTED

Commissioners' Decision.

Appeal from District Court, Hutchinson County; Jack Allen, Judge.

Ben Asner was convicted of receiving and concealing stolen property, and he appeals.

Affirmed.

E. T. Miller and Simpson, Dorenfield & Fullingim, all of Amarillo, for appellant.

W. L. McConnell, Dist. Atty., of Panhandle, Underwood, Johnson, Dooley & Wilson, of Amarillo, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is receiving and concealing stolen property. The punishment assessed is confinement in the state penitentiary for a term of two years.

The testimony adduced by the state upon the trial shows that during the month of January, 1938, Ross McGill was engaged in drilling an oil well for the Cities Service Company on the Deahl Tract, located about ten miles west of Borger, Texas. Since the drilling was only done during the daytime, one Barney Morrison was employed as a nightwatchman. On Saturday, January 15, Barney requested his brother, Bill, to relieve him for the night. On that afternoon, Bill Morrison had gone to see appellant and Frank Seliger, the proprietors of the Panhandle Pipe and Supply Company in Borger, and made arrangements to sell them some tools that were west of town. Appellant and Seliger agreed to purchase them, and Bill Morrison promised to deliver them that night. Bill got in touch with Earnest Roberts and agreed to split the proceeds from the sale of the property if Ernest would secure a car and assist in delivering it. These parties drove out to the well that night and loaded a part of the tools and delivered them to appellant and Seliger at their place of business. They then brought another load. After all the tools had been delivered, appellant and Seliger asked them how much they wanted for the property, and when told $50 they replied that they could not pay this much as they were also taking chances. They finally paid about $33 for the tools. Appellant and Seliger then had the boys, who were only 19 years of age, sign fictitious bills of sale. A check was then issued, payable to the fictitious person named in the bill of sale, which was endorsed and then taken by Seliger to the K. C. store about eleven p. m. and cashed. A few days after appellant and Seliger had received this property, they caused it to be painted green, thereby covering up any identification marks by which the tools might have been identified. Appellant insisted that this measure was taken in order to preserve the tools, and not to cover up any identifying marks. Appellant did not testify but offered a number of witnesses, some of whom had been in the employ of the Panhandle Pipe & Supply Company for quite a while. They testified that the tools alleged to have been stolen had been in possession of the company many months prior to the date of the alleged theft. Others testified that appellant and Seliger were not at the office on the night in question. That appellant was at the home of his aunt attending a birthday party. While the evidence is conflicting, we think there are enough circumstances shown by the state to corroborate the testimony of Roberts and Morrison, and to justify the jury in their conclusion of appellant's guilt.

One of the most hotly contested issues in the case was that of the value of the property in question. The state's theory was that there was no cash market value in the vicinity for the kind and character of the property in question, and they consequently proved replacement value. It was the defendant's contention that the property in question was nothing but junk and as such its cash market value was $4 or $5 per ton. One of appellant's witnesses asserted that junk was worn out property, obsolete and not fit for use except in an emergency, while the property in question was useable and in good condition. Thus two theories as to value were presented. If it were junk, its value was $4 or $5 per ton. If it were not in such condition as would bring it within the classification of junk, then it had no cash market value and proof of replacement value was admissible. See Sec. 2488, Branch's Ann.P.C. The question as to whether the property was or was not junk was one to be decided by the jury from the evidence and the appearance of the tools before them. Having solved this question, the solution of value became easy. Apparently appellant did not consider it as junk, or he would not have paid a sum for it which would have been sufficient to have bought four or five tons of the same. Moreover it is not likely that he would preserve the same by painting it if it were in fact junk.

By bill of exception number two, appellant complains because the witness Johnson was permitted to testify to the actual or replacement value of the tools in question, after he had first testified that he had been engaged in drilling oil wells for the past thirty years. That he was familiar with the type of tools in question, their use and condition at the time they were stolen, and the cost price to oil well drillers. It occurs to us that since the witness had affirmatively stated that there was no cash market value for tools of that kind and character at or anywhere near the place from which they were taken, it was proper to state the replacement value. This is the well established rule in this state. See for example, Holmes v. State, 126 Tex. Cr.R. 587, 72 S.W.2d 1092; Vol. 36 Tex. Juris., p. 371, Sec. 41. The disposition of this bill controls bills numbers three, four and five and we see no need in discussing them. It likewise disposes of the objection to the testimony of the witness Conover, in bills 7, 8, and 9, which is to the same effect insofar as it relates to the value of the two five inch wrenches.

A complaint is urged in bill number six to the testimony of Johnson in identifying two wrenches, described in the indictment as five inch wrenches, when it was shown by actual measurement that they were but 3½ and 3¾ inches respectively between the jaws thereof. The complaint made thereto is that this is a material variance from the allegations of the indictment. We are forced to disagree. Johnson testified that these wrenches were used on 5 inch holes and were commonly referred to as five inch wrenches. See Schenk v. State, 76 Tex.Cr.R. 235, 174 S. W. 357; Roman v. State, 64 Tex.Cr.R. 515, 142 S.W. 912; Dignowitty v. State, 17 Tex. 521, 67 Am.Dec. 670.

Bill number ten complaining of the testimony given by Rob. Ayers was cured by the prompt action of the court in sustaining appellant's objection to the same and the accompanying instruction to the jury to disregard the same. This is particularly true since there was evidence before the jury that the stolen property was found in appellant's possession and identified.

Bill number eleven complains of a question propounded to Ayers. Appellant's objection to the question was sustained and the witness was not permitted to answer. We do not think the question, in and of itself, was of such prejudicial nature as would require a reversal. Moreover, it was not altogether improper for the state to show, if it could, that tools of the same type had perhaps been substituted. Bills numbers 12, 13, and 15 and sixteen appear to be without merit and we see no need in discussing them.

By bill of exception number fourteen, appellant complains of the action of the district attorney on cross-examination of appellant's witness, Grubbs, in asking him the following question: "Were you there with the officers at the time Stephens' stuff was identified as stolen?"

The court promptly sustained appellant's objection and instructed the jury not to consider the same, and the witness was not permitted to answer the question. Appellant nevertheless excepted on the ground that the same was so highly prejudicial that the evil effect thereof could not be withdrawn from the jury. While the question may not have been properly framed, in that it contained an implied assertion that some of the property had been stolen from Stephens and was found at appellant's place of business about the same time, we think if the state had been allowed to show that some property had been recently stolen from Stephens and had been found in the same yard at about the same time, it would have been admissible on the theory of guilty knowledge. Guilty knowledge was an element of the offense which the state was required to prove, and evidence of other stolen property being in appellant's possession about the same time and place was a circumstance from which an inference of guilty knowledge might arise. See Kluting v. State, 90 Tex.Cr.R. 44, 232 S.W. 305, Padillo v. State, 129 Tex. Cr.R. 265, 86 S.W.2d 772 and authorities cited; Hodges v. State, 132 S.W.2d 863, decided by this court on Nov. 1 but not yet reported [in State report]. Moreover appellant offered evidence himself which showed that other stolen property was found in his yard and in his possession. Hence the evidence complained of as indicating an extraneous offense was no more prejudicial than that which he offered by his own witness.

Appellant urged a great many objections to the court's charge, which contained an instruction upon every phase of the law applicable to the facts proved upon the trial. We see no need of entering upon a detailed discussion of each objection. One objection is based upon the ground that the court failed and refused to instruct the jury relative to the law of circumstantial evidence. We do not think such an instruction was necessary under the facts. A complete case was made against appellant by the testimony of Bill Morrison and Earnest Roberts, the accomplices. All the state needed was corroborating facts or circumstances. It is the settled rule in this state that unless the state's case rests entirely upon...