Bailey v. State

• Decision Date: 05 March 1913
• Citation: 155 S.W. 536
• Parties: BAILEY v. STATE.
• Court: Texas Court of Criminal Appeals

155 S.W. 536

BAILEY v. STATE.

Court of Criminal Appeals of Texas.

March 5, 1913.

Appeal from District Court, Hunt County; R. L. Porter, Judge.

I. A. Bailey was convicted of being an accomplice to horse theft, and he appeals. Affirmed.

J. G. Matthews, of Greenville, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted as an accomplice to horse theft, and given the lowest penalty.

The horse was charged to have been stolen by Monroe Adams. Adams testified against appellant, and was sufficiently corroborated. The evidence was sufficient to establish that the day of the night of the theft appellant and Adams were together in appellant's field where they had some conversation in the presence and in connection with others then present about going to the Dallas Fair. When Adams got ready to leave and started, appellant accompanied him some distance from these others who were then at work down to a certain gate, where they stopped and talked privately for some time. Adams testified that at this time they talked about going to the Dallas Fair the next day, and he then told appellant he had no money to make the trip on; that appellant thereupon suggested that he, Adams, steal a horse that night, in effect designating the Hoard sorrel mare, ride it to Dallas, come back on the train to Royse, and meet him the next day, and that he, appellant, would assist him in making the sale of the horse in Dallas, and that appellant loaned him $3 at that time for that purpose; that in accordance with that agreement Adams did steal the Hoard sorrel mare, charged to have been stolen in the indictment, rode her to Dallas that night, arrived there in the night or early the next morning, and put the mare in a certain wagon yard; that he took the morning train from Dallas, and went back to Royse, where the appellant met him in accordance with the agreement. There were some three other persons, some of them relatives of appellant, who also were in Royse on that occasion, and they all that evening went to Dallas. Appellant asked him when he saw him in Royse on that occasion how he had come out and he told him all right. The appellant and Adams and the other accompanying parties, the others being in no way connected with the theft, went to Dallas on the late evening train. The five persons, after going around over the city somewhat, late at night, went to bed in the same room, the other three persons occupying one bed and appellant and Adams another. Early the next morning Adams and appellant got up before the other three, slipped out, and, after getting breakfast, Adams went to the wagon yard where he had put said mare, took her out of that wagon yard, and took her some distance to another, where he offered her for sale. Appellant met him at this wagon yard where he was offering the mare for sale and assisted him, and was present when he made the sale. It seems that Adams was a tall young man 17 or 18 years old, and, while only that old, was married; that he had worked as a hired hand for appellant, and had been with appellant a good deal during the year the mare was stolen. Adams offered the mare to various persons, first pricing her at $85. Several persons attempted to buy her on this occasion, but the highest offer he had for her before he began dickering with Miller & Gillespie was $50. Miller & Gillespie were horse buyers and traders, and had been buying horses on this occasion, and lacked only a few, or perhaps one, of making up a sufficient number to ship away from there for sale. Their attention was called to the fact that Adams was trying to sell this mare and had been trying to sell her to others, and they thereupon approached him about buying her. After dickering for some time, Miller & Gillespie, or Miller for them, offered Adams $65 for the mare, saddle, and bridle. The saddle and bridle were secondhand, and had been used for some time. After dickering some time, Adams first asking more for the mare, he finally agreed to take $65 for her. Appellant was present at this time, and Miller & Gillespie began to inquire of Adams about the title of the mare, and, seeing he was a young fellow, also about his age, and whether or not he could sell and make a good title to the mare. Adams gave his name to these parties at the time as Muggins Scott, instead of his true name, Monroe Adams, and appellant went under the name of Elmer Reed. After agreeing upon the purchase of the mare at the stated price, they then asked him where he lived, and he stated that he lived at Emory. When asked what county Emory was in, he could not give the county. They thereupon asked appellant if he knew what county Emory was in, and appellant could not tell. They then talked about telephoning to somebody at Emory to learn about Adams, but Adams protested he had no money to pay telephone charges. They thereupon asked appellant if he knew Adams and what about him, when appellant replied that he did know him, and that Adams was perfectly all right and responsible, and appellant then suggested to the parties and to Adams that he, Adams, had a brother-in-law, a barber, who lived in Dallas, and suggested that they see Adams' brother-in-law about him. That was agreed upon by all parties, and they all four started from there to hunt Adams' brother-in-law to ascertain whether Adams was all right and could make title to the mare. In going from the wagon yard to hunt up Adams' brother-in-law they all started together, but appellant soon suggested it was unnecessary for him to go with them, and he quit them. The others went on to Adams' brother-in-law, and upon finding him in a barber shop asked him about Adams, and his brother-in-law told them that Adams was all right, was a married man, and was trading for himself; they thereupon became satisfied, concluded to trade, and gave him a check for the money and took the mare. It is not shown that Adams and appellant were together any more that day until about or after night when they met with the other three persons whom they had stayed at the hotel with at the depot. Adams claims, in substance, that he then informed appellant of what had been done about the sale of said mare, and then turned over to him $10 of the money. They all talked about returning home that night, but at the instance of Adams they finally concluded not to do so, he claiming that he was flush with money, and proceeded to loan two or three of the others some money, besides, as he claimed, turning over to the appellant $10 of the money that he had gotten from the proceeds of the sale of said mare. He further testified that when appellant first suggested to him to steal the mare, and telling him that he would assist him in making the sale of her at Dallas, they agreed that they would divide the proceeds of the sale. Appellant also testified on the trial and denied advising Adams to steal the mare, and claimed that his meeting him at Royse the evening of the day after he had stolen her the night before, and going with him to Dallas, and their sleeping together that night and getting up and slipping out before their other three companions got up, and his meeting Adams at the wagon yard, and what he said and did there, was all accidental, or not by prearrangement, and denied that Adams had paid him any of the money.

The court charged that Adams was an accomplice, and gave a correct charge, to which there is no complaint, stating that he was an accomplice, and that appellant could not be convicted upon his testimony without the proper corroboration, etc.

Appellant claims that the testimony was insufficient to sustain the conviction. We have carefully gone over it, and in our opinion it was amply sufficient to sustain the conviction. Evidently the jury and the court below believed the state's witnesses, and did not believe appellant.

Appellant also complains that the evidence tends to show that Miller, the purchaser of the mare from Adams, was an accomplice. He asked no special charge to that effect on the trial, and the first time he complains is in an amended motion for new trial. He then complained that the court erred in not submitting the question to the jury of whether or not Miller, said purchaser, was an accomplice and charging on that subject. In our opinion the evidence did not raise the question; hence the court should not have charged on that subject.

The state also introduced uncontradicted evidence clearly showing that said Adams and Lewis White, together, stole another horse, colt, about two weeks or more before this Hoard mare was stolen by said Adams, known as, and designated by all the witnesses, the Cookson colt, and that they took that Cookson colt to Greenville in Hunt county about two weeks or more before the theft of the Hoard mare, and disposed of it with the assistance of appellant, and he got part of the proceeds under circumstances somewhat similar to the disposition of the Hoard mare. There was no objection whatever to the introduction of this evidence, and no charge whatever requested by appellant on the subject.

By his amended motion for new trial, appellant, for the first time, complains that the court erred in omitting to charge: "(1) The theft or not of the Cookson horse;" and it "(2) must be found to have been a theft." The theft of the Cookson colt was clearly proven by both Monroe Adams and Lewis White, and so conceded by appellant himself on this trial, and was not disputed. Hence it was not reversible error to fail to submit to the jury for a finding what was without contradiction clearly established, even if it had been proper to submit that collateral question at all. Holliday v. State, 35 Tex. Cr. R. 133, 32 S. W. 538; Nelson v. State, 35 Tex. Cr. R. 205, 32 S. W. 900; Tracy v. State, 44 Tex. 9; Elizando v. State, 31 Tex. Cr. R. 237, 20 S. W. 560; Pearce v. State, 35 Tex. Cr. R. 150, 32 S. W. 697; Height v. State, 150 S. W. 908. "(3) That defendant is on trial...