Avery v. State

• Decision Date: 30 November 1938
• Docket Number: No. 19857.,19857.
• Citation: 121 S.W.2d 992
• Parties: AVERY v. STATE.
• Court: Texas Court of Criminal Appeals

121 S.W.2d 992

AVERY v. STATE.

No. 19857.

Court of Criminal Appeals of Texas.

November 30, 1938.

Commissioners' Decision.

Appeal from District Court, Clay County; Earl P. Hall, Judge.

Dick Avery was convicted for knowingly receiving and concealing stolen property, and he appeals.

Judgment reversed and cause remanded.

Donald & Donald, of Bowie, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

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

The indictment in this case contains three counts. The first charges the theft of one head of cattle. The second charges that appellant received from Edward Orton one head of cattle, knowing it to have been stolen, and fraudulently concealed the same. The third count charged that appellant, on or about the 1st day of May, A. D. 1937, received from some person unknown to the grand jury, one cattle, knowing it to have been stolen and fraudulently concealed the same. The court submitted the case to the jury upon the first and second counts in the indictment. The jury found him guilty under the second count and assessed his punishment as above stated.

At the conclusion of the introduction of the evidence, appellant requested the court to instruct the jury to return a verdict of not guilty, which request was refused and to which ruling appellant duly excepted. His contention was that the evidence was insufficient to sustain a verdict of guilty under either count. We find ourselves unable to agree with him.

The testimony offered by the state shows that on or about the 5th day of May, 1937, appellant employed Milton Davidson, who owned and operated a truck, to haul seven head of cattle for himself and Orton to market at Vernon, Texas, there to be sold by the commission company as cattle belonging to appellant. He told Davidson that he and Orton each had three or four cattle to be carried to market. Davidson went to the Orton place and with the assistance of Orton and appellant, loaded the cattle and transported them to the commission company as cattle belonging to appellant. Among said cattle was a Hereford Steer, branded "B" on the left side and marked in each ear. This mark, however, was somewhat mutilated. The steer belonged to the Scaling Estate over which Burford Scaling had exclusive control and management. The steer in question was purchased from the commission company by R. C. Steele on May 6 and carried to his place near Crowell, where he kept it until about July 15 when he sold it through the commission company to a Mr. Spears of Quanah, from whom Scaling recovered it. At the time appellant was arrested or soon thereafter, he claimed that he bought three of the steers, including the one in question, from Edward Orton who was indebted to him at the time.

Appellant took the witness stand and testified that he had three cattle and Orton four, all of which they desired to sell; that they employed Davidson to haul the cattle to Vernon and deliver them to the commission company as cattle belonging to him because Orton owed the Commission Company $20. That he, appellant, did not own or claim the steer in question but that Orton claimed it and received the entire proceeds from the sale thereof. That if the steer was stolen, he had no knowledge of it. Under the facts as stated, an issue of fact was raised from which the jury could reasonably draw a conclusion as to appellant's guilt. We would not be justified in holding the evidence insufficient.

By bill of exception number two, appellant complains of the action of the trial court in declining to require the state to elect upon which count of the indictment it relied for a conviction. It is our opinion that under the peculiar facts of this case, the state was not required to elect. See Houston v. State, Tex.Cr.App., 47 S.W. 468; Collins v. State, 77 Tex.Cr. R. 156, 178 S.W. 345; Fallon v. State, 89 Tex.Cr.R. 247, 230 S.W. 170.

By bill of exception number three, appellant complains of the action of the trial court in permitting the state to recall the witness, E. P. Bomer, and to elicit from him statements made to him by appellant while under arrest. This bill is qualified and in his qualification the court states that appellant, through his attorney, first questioned the witness with reference to statements made by him to the witness while under arrest. That after the appellant had fully interrogated the witness with reference thereto, the state, on re-direct examination, went into the matter and elicited from him the fact that appellant said he had three steers in the bunch that he had gotten from Orton, who owed him some money and had paid him in that way; that appellant did not know how much he had allowed Orton for the steer.

It clearly appears from the qualification to the bill that appellant first went into the conversation between the witness and himself. Consequently under Art. 728, C C.P., the state had a right to offer the remainder of the statements made by the appellant. See Hill v. State, 123 Tex. Cr.R. 552, 59 S.W.2d 411; Scott v. State, 76 Tex.Cr.R. 410, 175 S.W. 1054.

Moreover, appellant took the witness stand and testified substantially to the same facts. Therefore any error committed was harmless.

By bill of exception number 3a, appellant complains because the trial court declined, upon request, to compel the County Attorney of Clay County to produce a voluntary written statement made to him by appellant. A similar question was before this court in the case of St. Clair v. State, 104 Tex.Cr.R. 423, 284 S.W. 571, and was decided adversely to appellant's contention.

By bill of exception number four, appellant complains because the court declined to instruct the jury to return a verdict of not guilty. His contention is that he was entitled to the instruction because the state proved by T. M. Byrd, an...