Bloch v. State

• Decision Date: 08 November 1916
• Docket Number: (No. 4240.)
• Citation: 193 S.W. 303
• Parties: BLOCH v. STATE.
• Court: Texas Court of Criminal Appeals

193 S.W. 303

BLOCH v. STATE.

(No. 4240.)

Court of Criminal Appeals of Texas.

November 8, 1916.

On Motion for Rehearing, March 14, 1917.

Appeal from District Court, El Paso County; W. D. Howe, Special Judge.

Herman Bloch was convicted of receiving stolen property, and he appeals. On rehearing the original opinion affirming the judgment below was set aside, and the judgment below reversed, and the cause remanded.

P. E. Gardner and M. Scarborough, both of El Paso, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was convicted of receiving stolen property, knowing it to be stolen, and his punishment assessed at two years' confinement in the state penitentiary.

Appellant sought to quash the indictment on the ground that it did not allege appellant "unlawfully and fraudulently concealed the property," as well as alleging that he unlawfully and fraudulently received it, knowing it to be stolen. Pen. Code 1911, art. 1349, makes it an offense to either receive or conceal stolen property, knowing it to be stolen. It is not necessary to do both to be guilty of an offense, but the doing of either is a violation of the law. Thurman v. State, 37 Tex. Cr. R. 646, 40 S. W. 795. The court committed no error in refusing to quash the indictment on the grounds named in the motion.

The motion for a new trial alleges many grounds as error in admitting and rejecting testimony, but no bills of exception appear in the record in regard to such rulings, therefore the questions are not presented in a way we are authorized to review them. Owens v. State, 4 Tex. App. 153; Smith v. State, 34 Tex. Cr. R. 123, 29 S. W. 774; Janca v. State, 56 Tex. Cr. R. 100, 119 S. W. 99; and cases cited on page 132, Branch's Annotated Penal Code.

There are but two bills of exception in the record, the first presenting the question that the court erred in failing to charge on circumstantial evidence, and erred in refusing to give appellant's special charge on that issue. This is not a case depending on circumstantial evidence. Stolen property is positively identified by several witnesses; its receipt by appellant is shown by positive evidence, Louis Cohn swearing to that fact, and then the state proves several admissions of defendant, in one instance Mr. Goodwin swearing appellant said, "I knew at the time I bargained for it, and knew when I paid for it, it was stolen off the train." Wampler v. State, 28 Tex. App. 353, 13 S. W. 144; Whitehead v. State, 49 Tex. Cr. R. 124, 90 S. W. 876; and cases cited in section 203, Branch's Criminal Law.

The only other bill in the record relates to the action of the court in overruling his motion for a new trial. One ground of the motion alleges the misconduct of the jury. To properly present this question for review a bill of exceptions should have been reserved, and in this bill should be incorporated the testimony heard on this ground of the motion, and it should have been filed in term time. The term of court at which appellant was tried adjourned June 24, 1916. The bill in the record (which includes no testimony heard) was not presented to the court for approval until September 7th — some 40 days after adjournment of the court. There is with the record a separate paper, which is termed "Supplemental statement of facts, on motion for new trial," filed on September 8, 1916, in the trial court — long after court had adjourned for the term. In Black v. State, 41 Tex. Cr. R. 185, 53 S. W. 116, this question was thoroughly discussed, and it was there held:

"These matters must be made part of the record during the term of court. There is no statute authorizing such matters to be perpetuated in papers filed subsequent to the term."

In that case the motion for a new trial alleged misconduct of the jury, as in this, and the court refused to consider the ground because the evidence heard thereon was filed after term time. The rule announced in that case has been followed in an unbroken line of decisions.

The judgment is affirmed.

On Motion for Rehearing.

DAVIDSON, P. J.

Appellant contends that the affirmance was in contravention of the law and the facts, and asks for a rehearing and reversal of the judgment. Without the details, the evidence discloses that a smelting company at El Paso loaded a certain numbered car with copper for interstate shipment; that the car was properly sealed, and started to its place of destination. Having reached a point about 25 miles from El Paso, the train was stopped by the conductor on account of a fire in some part of the machinery. He states the fire was not accidental. Where the train was stopped the conductor testified that he saw three or four men near the train, which indicated to him they had gotten off the train. He accosted them, and a conversation occurred in English. He did not know them, or whether they were Mexicans or Americans, and was not able to identify any of them, it being at night. They did not go in the train from that point. At another point considerably north of that above indicated it was discovered that the seal of the car had been broken and some of the copper taken or had disappeared from the car. The train left El Paso in the evening about 7 or 8 o'clock. Copper bars were found between El Paso and the line of New Mexico near the railroad track, and it is made reasonably to appear that some of it had been thrown from the train while in motion within 8 or 10 miles of the city of El Paso. Copper above that point was also picked up by the railroad people. There were indications that something had been thrown from the train which the circumstances indicated might be the missing bars of copper. There were tracks of men found at this place and the inference is they had carried the copper in a vehicle which made a narrow wheel track. The state contends that the next morning at a very early hour appellant told his clerk that he had three bars of copper at one of his warehouses where he lived, and there would be other bars brought to the warehouse which was controlled by the clerk. Six bars of copper, Cohn says, were brought to him early the same morning by two Mexicans in buggies drawn by jackasses or mules. This copper later was put in barrels to be shipped, and the bill of lading taken in the name of appellant. It would seem, however, that appellant did not, but Cohn did, attend to this shipment. When the copper was carried to the depot for shipment an investigation was made and the smelting company claimed the copper. It being in the name of appellant, he was sent for, and it is stated he admitted buying the copper. So far as any positive facts may be concerned, it seems appellant was not seen in actual possession of the property. There seems to have been another trial of the case, and while the jury was out on that trial witness Goodwin testified that in conversation between appellant, himself, and Attorney Hill, appellant admitted he knew the copper was stolen when be bought it, and that it "came off the train." This is denied by appellant and Hill both, and their version of it is entirely at variance in every way with the testimony of Goodwin. The writer deems it unnecessary to enter into a detailed statement of the facts and circumstances.

If appellant made the statement imputed by Goodwin, that he "knew" the property was stolen, and that it came "off the train," it would be an extrajudicial verbal confession. It does not prove the theft of the property. Hill v. State, 11 Tex. App. 132. It is an admission, if made, that he knew it was stolen and came "off the train." This can only be regarded as a circumstance. It does not prove the corpus delicti, the theft, or the main fact. Extrajudicial verbal confessions do not prove the corpus delicti. This was held in an able opinion by Judge Hurt in Hill v. State, 11 Tex. App. 132. The theft relied on by the state must be proved, the identity of the property established, and the theft must be shown aliunde such confession. This would not make a case of positive evidence. The authorities may be found collated by Mr. Branch in his valuable work on Criminal Law, p. 106. A serious proposition in the case is this: That a charge on circumstantial evidence should have been given. Wherever the facts are circumstantial such charge is necessary, and to relieve the court from giving this charge the evidence must be positive. This rule, wherever the case is of a compound nature, applies both to the original case and to its derivatives, as in homicide the indicted accomplice must have a principal. Such confession of the accomplice does not prove guilt of the principal, nor in a case where we have a principal and accessory, or a principal and a receiver. We are referring to extrajudicial verbal confessions. Such cases may be termed "compound offenses," made up of the original and the related subsidiary offense, both of which must be proved. The authorities all seem clear upon this proposition, and are collated by Mr. Branch in the citation above noticed. The correct general statement is that every such case has its main fact to be proved — the factum probandum — in theft, the taking; in murder, the fatal stroke; in forgery, the making of the forged instrument; in burglary, the breaking and entry, etc.; and if there is no direct evidence of the main fact, a charge on circumstantial evidence is required. If the main fact is inferred from other facts, the case rests wholly upon circumstantial evidence, in a legal sense. Section 202 of Mr. Branch's Criminal Law. Under that citation is collated a great number of cases, rather numerous to be here specified.

Now in this particular case there is no direct evidence as to the theft. It is one of inference, and the principal is not shown by positive evidence. The circumstances go to show that somebody entered the car by breaking the seal, though whoever did it resealed the car, but not with the same kind or character of seal. Where this...