Dalton v. State, 23555.

• Decision Date: 29 January 1947
• Docket Number: No. 23555.,23555.
• Citation: 202 S.W.2d 228
• Parties: DALTON v. STATE.
• Court: Texas Court of Criminal Appeals

202 S.W.2d 228

DALTON v. STATE.

No. 23555.

Court of Criminal Appeals of Texas.

January 29, 1947.

On Rehearing April 30, 1947.

Appeal from District Court, Wichita County; Walter Nelson, Judge.

Elbert Dalton was convicted of receiving and concealing stolen property and he appeals.

Affirmed.

C. Coit Mack, of Wichita Falls, 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 with a penalty of two years in the penitentiary.

The appellant is charged by indictment in the first count with the offense of burglary of a jewelry store in Wichita Falls, and the theft therefrom of certain watches alleged to be of the value of $828. The second count in the indictment charged him with receiving and concealing said watches from a person unknown to the grand jury, with the knowledge that they had been stolen. After the evidence was heard the court submitted to the jury only the second count.

The evidence discloses that after appellant had spent the night in Abilene, he was riding with a party in his car, probably as a hitch-hiker, and before reaching the city of Big Spring he made known to his host that he had a sack of watches consisting of about twenty in number. This aroused the suspicion of the driver of the automobile who had communication made to the Sheriff at Midland, and caused the arrest of appellant soon after he had left the car on the west side of that city. The Sheriff and City Marshal of Midland took appellant to the jail and discovered from his registration card that he lived in Wichita Falls. They then communicated with the Wichita County Sheriff and learned that a burglary had been committed a short while prior thereto in which a number of watches, similar in kind and number to those in appellant's possession, had been taken. The Sheriff of Wichita County proceeded to Midland and took appellant back to Wichita Falls. He testified at the instance of the state that appellant "said * * * he had found them; he said he had not stolen them. He said he had found the watches." Thereafter, and while appellant was in the jail, the sheriff further questioned him and learned that he had disposed of two watches—one to a girl in Abilene, who had spent the night with him in a hotel, and another to a man whom he described in another city, which proved to be Big Spring. Following the information thus given, both watches were recovered. Appellant also signed a written confession before the District Attorney in which he declined to say where he got them. This confession does not aid the state in the prosecution for receiving and concealing stolen property.

No evidence was introduced by the state to show that the grand jury made any effort to obtain the name of the person, or persons, from whom the watches were received by appellant, or that they could not do so. There is nothing in the record to indicate that it was not possible for them to learn the name of such person.

At the conclusion of the testimony appellant filed a motion for an instructed verdict, which the court declined to give. The record contains a number of bills of exception which are qualified by the court. Appellant excepted to such qualifications and the trial court failed to file his own bills. Consequently, there is no force or effect to be given to the court's qualifications, and the bills are before us as if approved when presented.

We have concluded that the court should have given the instructed verdict because there is no evidence that would even tend to show that appellant received the watches from another person. The possession of the watches, at the time and under the circumstances described, would have raised the presumption of theft and would have supported a conviction on such a charge. In the absence, however, of any evidence that another person had possession of them, and that appellant received them, a conviction for receiving and concealing stolen property is not supported. The evidence above quoted as given to the Sheriff by the accused soon after his arrest was an exculpatory statement by which the state, under all of the circumstances of this case, is bound. No evidence was offered to refute such statement, and it is not shown to be false, or a part of a fraudulent scheme, by the facts and circumstances of the case. A very valuable discussion of this subject is found in Otts v. State, 135 Tex.Cr.R. 28, 116 S.W.2d 1084, 116 A.L.R. 1454, and the conclusion therein is controlling. See also Robidoux v. State, 116 Tex.Cr.R. 432, 34 S.W.2d 863; Stelman v. State, 123 Tex.Cr.R. 330, 58 S.W.2d 831, 832; Yarbrough v. State, 125 Tex.Cr.R. 304, 67 S.W.2d 612; Am.Dig., Criminal Law.

Complaint is made of the introduction of the watches, on the ground that appellant was unlawfully arrested. This complaint falls in the face of the fact that his confession was introduced, and that this confession discloses the same facts as testified to by the sheriff and places the watches in his possession. The rule is the same as if appellant had taken the witness stand and testified to such facts.

The judgment is reversed and the cause is remanded.

GRAVES, Judge.

Appellant was charged with unlawfully and knowingly receiving certain watches from a person to the grand jury unknown, and concealing the same, said watches being the property of Sam Kruger. Upon his conviction, he was assessed a penalty of two years in the penitentiary.

The facts show that Mr. Kruger's jewelry store was burglarized in Wichita Falls, Texas, in February, 1946, and about 21 watches stolen therefrom. Soon thereafter, in Midland County, Sheriff Darnell was informed by one characterized as a credible person, that such person had been informed over the telephone by his partner that such partner had a boy in his car who had a sack of stolen watches; that the partner was coming through Midland and would meet the sheriff at a certain point in said city. Acting upon this information the sheriff and the Chief of Police repaired to such designated point and there found appellant walking away in a westerly direction. They accosted him, searched him and found a sack full of watches, some nineteen in number, and one in his pocket. After learning about the burglary of the Kruger jewelry store at Wichita Falls, the Midland County officers turned appellant and the watches over to Pat Allen, Sheriff of Wichita County. After appellant was placed in jail in Wichita Falls, he told Sheriff Allen where he had disposed of two more of the stolen watches. He had sold one to a man for $75, and had given one to a girl in Abilene. He accompanied the officers, and not knowing the name of the town wherein he had sold the watch, the officers drove to several towns and finally, at appellant's direction, found the place to be Big Spring, where they located Mr. Lowe, who had bought the watch from appellant for $75, which money was repaid to Lowe by appellant and the watch recovered, and also an expensive watch given to the girl in Abilene was later recovered as a result of the information given Sheriff Allen by appellant.

All this testimony was objected to on the ground that the arrest was illegal; that the officers violated the law in arresting appellant, and that, therefore, under Art. 727a, C.C.P., Vernon's Ann.C.C.P. Art. 727a, this testimony was inadmissible. We do not agree with this contention.

Article 215, C.C.P., provides as follows: "Where it is shown by satisfactory proof to a peace officer, upon the representation of a credible person, that a felony has been committed, and that the offender is about to escape, so that there is no time to procure a warrant, such peace officer may, without warrant, pursue and arrest the accused." See Pruett v. State, 114 Tex.Cr.R. 44, 24 S.W.2d 41; Rutherford v. State, 104 Tex.Cr.R. 127, 283 S.W. 512; Cortez v. State, 47 Tex.Cr.R. 10, 83 S.W. 812; Mitchell v. State, 52 Tex.Cr.R. 37, 106 S.W. 124; Moreno v. State, 71 Tex.Cr.R. 460, 160 S.W. 361; Klein v. State, 102 Tex.Cr. R. 256, 277 S.W. 1074; Silver v. State, 110 Tex.Cr.R. 512, 8 S.W.2d 144, 9 S.W.2d 358, 60 A.L.R. 290; Burkhardt v. State, 83 Tex. Cr.R. 228, 202 S.W. 513.

Bill of Exceptions No. 3 complains of the admission in evidence of the arrest and search of appellant, and also the introduction in evidence of the watches found on appellant's person at such time. Incorporated in said bill and as a part thereof, we find all the testimony relative to such arrest and search, in which it is shown in detail as stated above, that such arrest was based on information conveyed to the Sheriff of Midland County that a certain person was coming into said county who was in possession of a sack of watches, who "has got somebody's watches", and was trying to sell or give them away. This bill was qualified by the trial judge who merely reiterated in a few lines what appellant had placed in his bill in detail in six pages, part thereof being brought out by appellant's attorney and a part brought out by the State. The qualifications then added a nine-line confession signed by appellant after the showing of a proper warning. For some reason appellant objected and excepted to such qualification, and upon the trial court's failure to file the court's bill, we are relegated to the original bill without the qualification. From such original bill we are inclined to hold that appellant's arrest without a warrant was legal under Art. 215, C.C.P., and that no error is shown in such bill. If we should be mistaken in this, the further development of the case would render the error, if any, such as would not demand a reversal, as will appear in subsequent discussions.

Bill of Exceptions No. 1 complains of certain paragraphs in the court's charge wherein he gave in the charge to the jury Art. 200, C.C.P., relative to the venue of the offense of receiving and concealing stolen property. This was objected to in...