Clark v. State

• Decision Date: 25 January 1922
• Docket Number: (No. 6709.)
• Citation: 237 S.W. 260
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

237 S.W. 260

CLARK v. STATE.

(No. 6709.)

Court of Criminal Appeals of Texas.

January 25, 1922.

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

Harold Clark was convicted for theft, and he appeals. Affirmed.

Owen & Bridgers, of El Paso, for appellant.

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

MORROW, P. J.

Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years. A rehearsal of the testimony is unnecessary; suffice it to say that the theft of the property described in the indictment was proved. There was sufficient evidence of appellant's connection with the theft, both by his own testimony and confession and by that of others.

From appellant's testimony there is advanced the theory that he was not a party to the original taking of the property; that his connection with it began after it was stolen; and the appeal apparently is based upon the proposition that this affirmative defense of the appellant was not sufficiently brought to the attention of the jury. The appellant is, no doubt, correct in his statement that, if he was not connected as a principal offender in the taking of the property, his subsequent acquisition and appropriation of it would not meet the averments in the indictment. Jones v. State, 57 Tex. Cr. R. 148, 122 S. W. 31; Branch's Crim Law, § 472, p. 448; Simpson v. State, 81 Tex. Cr. R. 389, 196 S. W. 835. There is evidence, however, which, if believed by the jury, would connect him with the taking as a principal in the theft. Upon the issue whether he was connected with the original taking, the finding of the jury is binding upon this court. Glasser v. State, 233 S. W. 970, and cases therein referred to.

The efforts of the appellant to have the jury affirmatively instructed that if appellant's relation to the offense was only a receiver of the stolen property, he could not be convicted of theft, do not appear in the record in a manner authorizing the court to consider them.

The paragraph of the statute which requires a charge to the jury also requires that before it is read it shall be presented to counsel for the accused, and after examining same "he shall present his objections thereto in writing, distinctly specifying each ground of objection." See Code of Crim. Proc. art. 735, also article 737a. In article 743 it is said:

"All objections to the charge, and on account of refusal or modification of special charges shall be made at the time of the trial."

In construing these statutes, the court has uniformly and often held that objections to the charge or to the refusal of special charges cannot be reviewed on appeal, unless it appears from the record that they were presented to the trial court before the charge was read to the jury. In the present instance there are documents in the record purporting to be special charges requested and refused and exceptions to the court's charge. In no instance, however, does it appear in connection therewith that they were presented to the court at the time required by the statutes, that is, at the time of the trial before the charge was read to the jury. We are therefore not authorized to consider them. Salter v. State, 78 Tex. Cr. R. 325, 180 S. W. 691; Castelberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216, and cases cited therein.

Appellant complains of the admission of his confession, which was made while he was under arrest and in which there was a failure to show warning. This is not tenable, for the reason that it led to the discovery of the stolen property. Buntain v. State, 15 Tex. App. 485; Torrence v. State, 85 Tex. Cr. R. 312, 212 S. W. 957.

Appellant advances the theory that error is disclosed in the bill, in that the witness Boswell, from whom the testimony came, gave additional testimony as to appellant's declaration, while under arrest and unwarned, concerning his connection with the theft, and that the additional testimony came subsequent to that which resulted in the...