Barker v. State

• Decision Date: 16 November 1927
• Docket Number: (No. 11165.)
• Parties: BARKER v. STATE.
• Court: Texas Court of Criminal Appeals

2 S.W.2d 851

BARKER v. STATE.

(No. 11165.)

Court of Criminal Appeals of Texas.

November 16, 1927.

Rehearing Denied. February 29, 1928.

Appeal from District Court, Martin County; Chas. L. Klapproth, Judge.

Tommie Barker was convicted of receiving and concealing stolen property, and he appeals. Affirmed.

Cunningham & Cunningham, of Big Spring, for appellant.

A. A. Dawson, State's Atty, of Austin, for the State.

HAWKINS, J.

Conviction is for receiving and concealing stolen property, punishment being two years in the penitentiary.

Appellant undertakes to raise a number of questions which appear in the record in such condition that we cannot take cognizance of them. There is found in the transcript a document which purports to be objections to the court's charge. It is not verified by the trial judge and does not recite that it was presented before the main charge was read to the jury. Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Castelberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679. By bills of exception Nos. 1 and 3 appellant undertakes to bring forward objections to the charge, but by neither of said bills is it shown that the objections were presented in writing before the reading of the main charge. Article 658, C. C. P. (1925); Roberts v. State, 99 Tex. Cr. R. 492, 269 S. W. 103; Wright v. State, 100 Tex. Cr. R. 291, 272 S. W. 787; Butler v. State, 105 Tex. Cr. R. 228, 288 S. W. 218; Scott v. State, 106 Tex. Cr. R. 376, 292 S. W. 891. Two special requested charges appear in the transcript. Neither of them show whether they were requested before the main charge was read, both are simply marked "refused" over the trial judge's signature without verification that exception was reserved to such refusal, and no separate bills of exception are found complaining of the court's action in declining to give them. Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Cunningham v. State, 97 Tex. Cr. R. 624, 262 S. W. 491; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097. Bills of exception 2 and 4 show no error. They each complain of certain questions asked of witnesses, but in neither bill is the answer given by or expected from the witness set out.

The subject of the theft was an automobile. It was stolen in Stanton, Martin county, and abandoned by appellant and two others in Reeves county when about to be overtaken by officers. It was appellant's contention that he was not a party to stealing the car, but knew one of the other boys was going to steal it, and that after he had done so appellant and his companion got in the car with the thief and left the county where it had been stolen. The jury was justified in finding that appellant was a party to the removal of the car and therefore in contemplation of the law "concealing" it. The word "conceal" is not to be given the literal construction of hiding, but may be by handling the property in a manner that would throw the owner off his guard in his search for it. Property may be concealed by carrying it off. Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45; Moseley v. State, 36 Tex. Cr. R. 578, 37 S. W. 736, 38 S. W. 197.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

A strong appeal is made to us to vary the established rules of this court, and to depart from all the precedents in view of what is set up as the merits of this defense. If the rules be right and the precedents be sound, the unwisdom and injustice of a departure in a particular case would be apparent. This court cannot make fish of one and flesh of another. If we were willing to set the law aside in one case, manifestly we could not justify our failure to set it aside in all cases. However, the facts in this case are not such as to lead us to conclude that we have here a youth of such innocence and lack of guile, as to greatly appeal to this court. We observe that the facts show practically without dispute that appellant and two other boys discussed the theft of a particular car, and that appellant and one of the boys were afraid to take the car, but when it was taken by the third boy, these two willingly got into the car and rode from Martin county to Pecos in said stolen property. We perceive little, if any,...