Brown v. State, 23988.

• Decision Date: 07 April 1948
• Docket Number: No. 23988.,23988.
• Parties: BROWN v. STATE.
• Court: Texas Court of Criminal Appeals

211 S.W.2d 234

BROWN v. STATE.

No. 23988.

Court of Criminal Appeals of Texas.

April 7, 1948.

Rehearing Denied May 26, 1948.

Appeal from District Court, Johnson County; Penn J. Jackson, Judge.

Thomas Abb Brown was convicted of receiving and concealing stolen property, and he appeals.

Judgment and sentence reformed and affirmed as reformed.

Marvin H. Brown and Henry R. Bishop, both of Forth Worth, for appellant.

Ernest S. Goens, State's Atty., of Austin, for the State.

BEAUCHAMP, Judge.

The appeal is from a conviction for receiving and concealing stolen property over the value of $50, with a penalty of two years in the penitentiary.

There are nineteen bills of exception in the record which include the objection to the failure of the court to grant the motion for continuance and also numerous exceptions to the court's charge, together with his failure to give several requested charges. We have carefully examined these and are of the opinion that no error was reflected by any of these bills.

A number of other bills raise objection to the introduction of evidence relating to the former conviction alleged in the indictment. The jury failed to find that he had been formerly convicted and all such objections need not be considered.

In oral argument great stress was placed on Bill of Exception No. 13, which asked for an instructed verdict of not guilty based on the contention that the evidence was insufficient to support the conviction. The contention was made, in the argument, that the prosecuting witness was the man who stole the car and that his evidence as to the connection of appellant with the car, in receiving and concealing it, was insufficient to show that he knew it was stolen property; and that it was not corroborated by other evidence. This seems to be the only bill requiring discussion. All others may be considered overruled.

Appellant lived in the town of Burleson, near Fort Worth, and was engaged as a carpenter working in the City of Fort Worth. Herbert Horn knew him there and was daily in touch with him for some time prior to the date of the alleged offense. Horn became the chief witness for the State and testified that he stole the car referred to as a 1940 Plymouth, on or about the 28th day of February, 1947, and drove it down to Burleson reaching the home of appellant sometime between 9:30 and 10 o'clock, after he had retired. He woke the appellant up and told him he wanted to place a car in his garage; that it belonged to a friend who had gone to Houston and wanted to leave it there. Appellant got up, helped him put the car in the garage, and then returned to bed. The witness returned to Fort Worth.

A Mr. Richardson, who occupied a part of the house, corroborated this evidence to some extent in that he was awakened by Horn, heard the conversation, and knew that the car was placed in appellant's garage. The next morning he saw the car in the garage, and he looked at it several times during the two or three months, as he remembered it, that the car was there. The witness Horn testified that sometime after the car was placed in the garage, he went to Burleson and he and appellant worked all day on the stolen car; that they removed the motor and Horn took it back to Fort Worth with him. The witness Richardson was at home during that day and he testified clearly as to all of these facts. He saw Horn there working with appellant, and was able to identify him from the witness box as the party who worked all day that Saturday with appellant and took away the motor.

Horn testified that on the night of April 8th he went back to appellant's house, in Burleson, arriving sometime after dark, and that he and appellant together with another party named Vick took the stolen car, without its engine, out of the garage and towed it south and then turned on a neighborhood road some five miles. They went into a field, stripped the car of all its tires (and probably some other parts) after which they set it afire and left it. The witness Richardson testified that he was awakened and saw appellant with a man he believes to be Horn, and another not identified, as they pulled the stolen car out of the garage. They took a rope with which Richardson's dog was tied and used it in towing the car. They first pulled it out by attaching appellant's Mercury to the back of the stolen car. Then they untied it and Mr. Brown pulled around in front of the stolen car and they tied it on to the back of the Mercury. Richardson saw three cars there, just as the witness Horn testified, and he says they drove away to the south.

The witness Horn testified that he gave appellant two of the tires with the tubes. These were thereafter traced to appellant's possession. He gave...