Cuilla v. State

• Citation: 187 S.W. 210
• Decision Date: 31 May 1916
• Docket Number: (No. 4073.)
• Parties: CUILLA v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

187 S.W. 210

CUILLA v. STATE.

(No. 4073.)

Court of Criminal Appeals of Texas.

May 31, 1916.

Rehearing Denied June 21, 1916.

Appeal from Harris County Court, at Law; Murray B. Jones, Judge.

Jack Cuilla was convicted of receiving and concealing stolen property, and appeals. Affirmed.

K. C. Barkley and Cooper & Merrill, all of Houston, for appellant. John H. Crooker, Cr. Dist. Atty., E. T. Branch, Frank Williford, Jr., and L. M. Williamson, all of Houston, and C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of receiving and concealing stolen property worth $15, and his punishment assessed at a fine of $100 and six months in jail. The statute is: If any person shall receive or conceal property which has been stolen, knowing it to have been so acquired, he shall be punished the same as if he had stolen the property. P. C. art. 1349.

It is not necessary for a person to be guilty under this statute that he shall both receive and conceal, but the offense is if he shall do either — receive it or conceal it — knowing at the time that it was stolen. This statute is clear as to this, and has always been held by this court as stated, and it has always been held that it is not necessary to charge nor prove the accused with having received or concealed the property with intent to defraud any particular person.

"If the receiver of stolen property received it for the purpose of aiding the thief, or for concealing it, without expecting to receive any reward thereby, he is equally guilty as if he had bought it from the thief, with a knowledge that it was stolen with the intent to defraud the owner." Nourse v. State, 2 Tex. App. 314.

In the same case it is held:

"When the receiver knows that the goods have been stolen by the thief, then, if after the offense of theft is complete he receives or conceals the stolen property, to aid the thief in escaping detection, or to assist him in disposing of it, the offense is complete."

See, also, 2 Bishop's New Crim. Law, § 1138; Arcia v. State, 26 Tex. App. 205, 9 S. W. 685; State v. Rushing, 69 N. C. 29, 12 Am. Rep. 641; Com. v. Bean, 117 Mass. 141.

The indictment herein alleged that appellant did receive and conceal. Under such allegation the accused can be convicted for either receiving or concealing. Branch's Crim. Law, § 907.

"The word `conceal' is not to be given the literal construction of hiding, but the handling of property in a manner that would throw the owners off their guard in their search and investigation for the same." Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45.

"Property can be concealed by carrying it off." Moseley v. State, 36 Tex. Cr. R. 578, 37 S. W. 736, 38 S. W. 197, and the Polk and Davis Cases, supra.

Appellant contends that the evidence is insufficient to sustain the conviction. We have carefully read and studied the testimony. In our opinion, it is amply sufficient to sustain a conviction for both receiving and concealing the stolen property. The great preponderance of the testimony clearly establishes both a fraudulent receiving and a concealing of the stolen property. Most of the facts were established by both positive and circumstantial testimony without contradiction. It is true, there was some conflict in the testimony on some points, but, even where there was conflict, the jury were clearly authorized to believe the incriminating testimony which they evidently did.

We will not recite the testimony in detail, but we will give the substance of what it established and what the jury were clearly authorized to believe and find therefrom:

Will Curtis burglarized the store of A. Tomasino, and at the time stole therefrom a lot of dry goods in piece bolts and a Smith & Wesson 38 caliber pistol. He at once took this property to the house of his "kept woman," Elnora Pero. She undertook to conceal the property, and did conceal it about her premises, hiding said pistol and another Colt pistol also at a different place from the other stolen property. About December 5th the officers, in hunting for this and other stolen property, searched several houses therefor in her immediate neighborhood. She became alarmed, fearing she might get in trouble about it. On the morning of December 5th, which was Sunday, the officers arrested Curtis and placed him in jail. She telephoned to appellant and his partner, asking them to come to her house. His partner first went and had an interview with the woman. A little later appellant himself went to her house and interviewed her. She told both of them that said goods and said Smith & Wesson pistol had been stolen by Curtis, and that she had concluded to burn them, fearing that, if the officers found her in possession, she would get in trouble. She employed appellant and his partner to represent Curtis. They had her then to put all of those stolen goods, including the pistols, in two packages, and that they would take them. Later that evening they both went to her house, got all of said stolen goods and pistols, and took them to their office.

About the same time of the burglary of Tomasino's house Curtis burglarized another store and stole some dry goods therefrom belonging to the Schaeffers. Elnora Pero told them about this burglary and theft also. They procured from her the address of Curtis' wife and went to see her, and told her they were employed to represent Curtis, and that they had been informed that there were concealed about her premises some of the Schaeffer stolen goods. They induced her (Curtis' wife) to turn over to them those stolen goods also, and they carried them to their office. In their office they placed said pistols in the drawer of appellant's desk, where they were concealed from observation. They placed both of the other sets of stolen dry goods in a closed trunk. The next morning the officers learned from Curtis' wife that appellant had gotten from her some stolen dry goods. The officers first took the Schaeffers there to see if they could identify any of those goods as theirs, not then having any knowledge that appellant had procured said stolen goods from the Pero woman. Appellant at first declined to permit them to examine the goods, demanding that they should describe them so as to identify them before seeing them, but finally, after being insisted upon by the officer, permitted them to examine the goods. Upon this examination the Schaeffers identified some of the goods as those stolen from their store. Later the officers had Tomasino up to see if he could identify any of those goods as his. Because those which had been stolen from Tomasino were piece goods, and all marks had been taken off of them, Tomasino could not with certainty identify any of those goods as his stolen goods, and none of them at that time were identified as his goods. These parties examined these goods more than once for the purpose of identifying them, if they could, but in the condition they were Tomasino could identify none of them as his at that time. The appellant at no time when the officers or these parties were attempting to identify these goods called their attention to the fact that at the same time they had gotten the goods from the Pero negro woman they also got from her as a part of the same stolen goods said pistols. They said nothing about it whatever to any of these parties.

On December 13th an examining trial of Curtis was held on the burglary charge against him. Appellant and his partner represented him, were present at the examining trial, and heard the testimony of all the witnesses. They heard the testimony of Tomasino, wherein he told about the burglary of his house and the stealing from him of said dry goods and said Smith & Wesson pistol. He accurately described the Smith & Wesson pistol so as to clearly identify it. Appellant at that time failed to disclose to Tomasino, the justice of the peace who held the examining trial, or any of the officers, the fact that he had received that pistol from the Pero negro at the same time he received the other goods from her. On that examining trial Tomasino testified that he had examined the dry goods in the trunk in their office, but could not identify any of them as his property. On that same day, after the examining trial, appellant told Tomasino that he had a Colt pistol, but did not then or at any other time tell him that he had that Smith & Wesson pistol. Tomasino swore:

That he knew the Colt pistol could not be his, because no Colt pistol had been stolen from him; that he had been at appellant's office several times, both before the examining trial of Curtis and several times afterwards, and appellant "never...