Childress v. State

• Decision Date: 03 May 1922
• Docket Number: (No. 6880.)
• Parties: CHILDRESS v. STATE.
• Court: Texas Court of Criminal Appeals

241 S.W. 1029

CHILDRESS v. STATE.

(No. 6880.)

Court of Criminal Appeals of Texas.

May 3, 1922.

Rehearing Granted May 31, 1922.

Appeal from District Court, Orange County; V. H. Stark, Judge.

Max Childress was convicted of felony theft, and he appeals. Motion for rehearing granted, judgment of affirmance set aside, and judgment of trial court reversed, and cause remanded.

C. W. Howth, of Beaumont, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

HAWKINS, J.

Conviction is for felony theft, punishment being assessed at two years' confinement in the penitentiary.

Our Assistant Attorney General calls attention to the fact that none of the bills of exception appear from the record to have been filed in the lower court. They are approved by the trial judge, but, without the record shows the filing in the court below, they cannot be considered. Oliver v. State, 58 Tex. Cr. R. 50, 124 S. W. 637.

We have examined the statement of facts, and find the evidence sufficient to support the verdict. It being purely a fact case, as the record now appears we deem it unnecessary to set out the evidence.

The judgment of the trial court must be affirmed.

On Motion for Rehearing.

An opinion affirming the judgment was delivered May 3d. The bills of exception were not considered because the record failed to show that any of them had ever been filed in the court below. It is now made to appear that the bills of exception in fact bear the file mark of the clerk, and that the same were filed in ample time to receive our consideration, but, by inadvertence, the transcript failed to show their filing. In connection with the motion for rehearing the bills will now receive our attention.

Appellant was convicted under the second count in the indictment charging him with theft of a grafanola. It is alleged in said count that the same was the personal property of Ruth Lyles, and that it was taken from her possession. The evidence disclosed that Ruth Lyles was a married woman; that her husband was working in Louisiana, but would spend two or three nights at home each week; they sustained the relation of husband and wife. It is claimed that ownership and possession should have been alleged in him. It is shown by the evidence that the grafanola in question was the separate property of the wife, it having been purchased by her before her marriage with money given her by another party. In theft cases ownership of the separate property of the wife may be alleged to be in either the husband or the wife. Coombes v. State, 17 Tex. App. 258; Kauffman v. State, 53 Tex. Cr. R. 209, 109 S. W. 172; Smith v. State, 53 Tex. Cr. R. 643, 111 S. W. 939. The court, therefore, properly refused the special charge for a peremptory instruction to return a verdict of not guilty because the ownership of the property was alleged to be in Ruth Lyles, instead of J. R. Lyles.

It is made to appear (bills of exception 1 and 19) that while the sheriff was testifying he was asked if appellant had not told him that he had bought the grafanola in question from one Posey. The evidence was excluded because it appeared from the sheriff's testimony that appellant was practically under arrest at the time. While appellant was upon the witness stand the district attorney asked him if he had not told the sheriff that he bought the instrument from Posey, and upon objection the answer at first was excluded. The district attorney then changed the question, and asked if he had not so told the sheriff before he was ever placed under arrest. The court permitted him to answer, and he admitted that he had so told the sheriff. It is contended by appellant that only one conversation relative to the matter occurred between appellant and the sheriff, and that appellant was in fact under arrest at the time he made the statement the admission of which was complained of. The bills of exception do not make it clear that there was only one conversation, and, it being left in doubt by them, the court's qualification will control, and we must presume the ruling of the court in admitting the testimony was correct.

Appellant requested the court to instruct the jury to return a verdict of not guilty because there was no legal evidence in the record to show the market value of the alleged stolen property. This the court declined to do, and the same is brought forward as error. Mrs. Lyles testified that a second-hand grafanola had no market value in the town of Orange, where the theft is alleged to have occurred. The record is otherwise silent upon this point. She testified that she purchased the grafanola in April, 1919, and paid for it the sum of $120; that she had been offered for it the sum of $75. Objection was urged to her testimony as to what she paid for it, and what she had been offered, as not being the way to prove market value. "Value" as it relates to stolen property is the market value of the same at the time and place of the taking, if it had a market value, and if not, the value would be the amount it would cost to replace it. Cunningham v. State (Tex. Cr. App.) 236 S. W. Rep. 89, and cases therein cited. The record showing it had no market value, the testimony of the witness as to what she had paid for the same and what she had been offered for it would be pertinent to enable the jury to determine its real value, or what it would cost to replace it. The question discussed is presented in bills of exception 4, 10, and 11, and show no error.

Bills of exception 3, 5, 6, 7, 8, 9, 13, and 16, as qualified and explained by the trial judge, present no error. Bill No. 20 consists of 33 questions and answers. We have frequently heretofore condemned bills in this form. See Carter v. State (Tex. Civ. App.) 234 S. W. 535; Jetty v. State (Tex. Cr. App.) 235 S. W. 589; Rylee v. State (Tex. Cr. App.) 236 S. W. 744; McDaniel v. State (Tex. Cr. App.) 237 S. W. 292; Watson v. State (Tex. Cr. App.) 237 S. W. 298; Cottrell v. State (Tex. Cr. App.) 237 S. W. 928.

On the night of the alleged theft Mrs. Lyles and her sister left their house about 7 o'clock to attend a circus. Upon returning they discovered the grafanola was missing. Mrs. Lyles made complaint to the officers, expressing her suspicions of appellant, and the officers visited his house that night, but failed to find the instrument there. She explains that her suspicions were aroused towards appellant because as she and her sister were leaving the house she saw him and one John Miller in a car near there. Appellant was a service car driver, and Mrs. Lyles had frequently called upon him to take her places in his car. She denied that any relations existed between them other than that as a chauffeur he was driving her for pay; that she used his car two or three times a week, telephoning him whenever she desired him to come to the house for her. She denied that he had ever spent the night with her at any time. Her sister, who occupied a portion of the same house with Mrs. Lyles, did not support her in all respects with reference to her attitude towards appellant. Her sister testifies that they seemed to be on very friendly terms; that appellant was a frequent visitor at the house, both day and night; that he would sometimes call at the house in his car, and Mrs. Lyles would go out and talk to him, and at other times he would come in the house and stay there an hour or two visiting with her sister; that she did not know how long he would remain at night always, as sometimes her sister would be in her part of the house and witness in the other.

Appellant claimed and testified that he was on unusually friendly terms with Mrs. Lyles; was a frequent visitor at her house, and always had access to her room with her consent, both day and night; that on the day before the alleged theft she had asked him for $65; that he had told her...