Glasser v. State

• Decision Date: 05 October 1921
• Docket Number: (No. 6270.)
• Citation: 233 S.W. 969
• Parties: GLASSER v. STATE.
• Court: Texas Court of Criminal Appeals

233 S.W. 969

GLASSER v. STATE.

(No. 6270.)

Court of Criminal Appeals of Texas.

October 5, 1921.

Appeal from District Court, Eastland County; E. A. Hill, Judge.

Philip Glasser was convicted of receiving stolen property, and appeals. Affirmed.

Marks & Flaherty, of Ranger, and Burkett, Anderson & Orr, of Eastland, for appellant.

W. J. Oxford, of Fort Worth, and R. H. Hamilton, Asst. Atty. Gen., for the State.

MORROW, P. J.

The appellant was charged in separate counts with the offenses of theft and having received stolen property.

The second count alone was submitted to the jury. The state used as a witness, on the promise of immunity, one De Vries, who testified that he stole the property in pursuance of an agreement with the appellant and one Sonduck, that they would do certain things facilitating the theft; and that the property should be shipped by rail to Tulsa, Okl., and there sold, and the proceeds divided among the three. The stolen property consisted of a lot of pipe used in boring oil wells, was valued at $3,000, was pointed out by De Vries to one Carlton, and by Carlton hauled to the town of Ranger and loaded into a car and shipped to Tulsa, Okl., under a bill of lading issued to H. B. Sanders. The appellant was found in possession of the bill of lading while the property was still in the hands of the railroad company, and made declarations concerning his connection with the transaction to the effect that he purchased the property from H. B. Sanders without knowledge or notice of the fact that it was stolen. Neither Sanders nor Sonduck was used as a witness. The testimony of De Vries was attacked by proof of his connection with various thefts, and his charge by indictment of other thefts, and promises of immunity.

There was evidence that the bill of lading came into possession of the appellant while he was in the city of Dallas, Tex., where his wife was confined in a sanitarium, and it was while he was at Dallas that he was found in possession of the bill of lading and made the declaration referred to. Whether, under the evidence, the appellant's connection with the theft was that of an accomplice or a principal therein were matters which might, with propriety, have been determined by the jury. This however, was not demanded, and, so far as the evidence is concerned, the question for review is whether or not there is sufficient evidence, if believed by the jury, to establish appellant's guilt as a receiver of the stolen property.

In deciding this question, it is necessary to keep in mind the law whereby, if appellant's sole connection with the theft was that of an accomplice or a principal, his conviction as a receiver could not stand. Kolb v. State, 228 S. W. 210; Simpson v. State, 81 Tex. Cr. R. 389; 196 S. W. 835; Burow v. State, 85 Tex. Cr. R. 133, 210 S. W. 805; Middleton v. State, 86 Tex. Cr. R. 307, 217 S. W. 1046. In other words, if appellant's criminal acts relating to the transaction were all preliminary to the theft, he would have been no more than an accomplice thereto. If, however, the appellant was a party to a conspiracy in pursuance of which property was stolen, each conspirator performing a specific part, the consummation of the design would characterize appellant as a principal. Smith v. State, 21 Tex. App. 108, 17 S. W. 552; Burow v. State, 85 Tex. Cr. R. 133, 210 S. W. 805.

De Vries, in his testimony to the effect that he stole the property, is corroborated by Carlton, who transported it to the car and was paid by appellant, but this he explains in a manner consistent with his innocence, claiming that Carlton was indebted to him, and that by arrangement with his business associate, Sonduck, appellant paid the charges as a means of collecting his debt from Carlton.

A witness, testifying to the interview with appellant in Dallas after the discovery of the theft, imputed to the appellant a statement in substance that he bought a string of pipe from one Sanders, who came to him stating that he had a car of pipe to sell; that arrangement had been made with Carlton to load it on the car; that he was afterwards informed by Sonduck, whom he had sent to inquire whether the pipe was loaded, that the bill of lading was at hand, and paid Sanders part of the money—$400. Testifying upon the stand upon this phase of the case, appellant said, in substance, that previous to the transaction in question he had formed a business arrangement with one Sonduck and one Weinert for the purpose of dealing in various kinds of used and abandoned property, including pipe, appellant furnishing the funds in the main; that Weinert had absconded with a large portion of the funds; that he was advised by Sonduck that a friend of his named Sanders had a string of pipe on hand which could be bought at a price very favorable to the purchaser; that Sonduck introduced appellant and Sanders, and Sanders insisted that, owing to his friendship with Sonduck and the low price for which he was to part with the property, he would make the sale to Sonduck alone; that leaving Sonduck to conclude the deal with Sanders, appellant went to Dallas, later receiving a letter from Sonduck and two bills of lading; that he desired the bills of lading as protection because of his loss through his partner Weinert. In the conversation with Sonduck, according to the appellant, it was stated that De Vries would point out the property. Appellant disclaimed any arrangement with De Vries, or conspiracy, or knowledge that the pipe was stolen.

The evidence showed that the bills of lading to Sanders were so drawn that the railroad company would deliver the property to the holder of the bills of lading.

As stated above, Sonduck did not testify, nor did Sanders, and there was evidence introduced that the bill of lading was obtained by Sonduck, he using the name of Sanders. The possession of the bill of lading put the property under the control of the appellant, and unless under our statute the manual possession of it was required, he, in receiving the bill of lading, received the property. Manual possession is declared unnecessary by many authorities. See Bishop's New Criminal Law, vol. 2, p. 1139; Cyc. of Law & Proc. vol. 34, p. 517; Huggins v. State, 41 Ala. 399; State v. Stroud, 95 N. C. 626.

The appellant having been found in possession of the property in the manner stated, and having explained the means by which he obtained it, the conclusion of the jury, implied by the verdict that he was a receiver of the property after it was stolen, and not an accomplice or principal in the original taking, is not unauthorized. Likewise, in our opinion, the jury's finding that, while the appellant was not connected with the original taking, he was aware of the fact that the property was stolen by De Vries, is supported by the evidence.

There was conflict between the appellant's testimony and that of De Vries touching appellant's connection with the original taking. Considering the discrediting evidence against De Vries and the necessity under the law for his corroboration, the rejection of that part of it which connected appellant with the original taking was not unwarranted. Appellant's possession of the bills of lading was conceded. Other circumstances, notably the disparity between the amount of money with which the appellant actually parted and the value of the property, and the knowledge that appellant obtained through other transactions with De Vries that the latter was a thief, were sufficient to justify the jury in concluding that appellant's declaration that he was unaware of the fact that the property was stolen was not true.

The indictment having been presented by a grand jury composed of 12 men legally impaneled was not rendered void by the mistake of the clerk in omitting from the record the names of three of the grand jurors. This defect in the record was properly corrected by the order nunc pro tunc. Burnett v. State, 14 Tex. 455, 65 Am. Dec. 131; Rhodes v. State, 29 Tex. 188; Bennett v. State, 80 Tex. Cr. R. 662, 194 S. W. 145, 148; Barnes v. State, 230 S. W. 986; Wichita Valley Co. v. Peery, 88 Tex. 382, 31 S. W. 619; Chestnutt v. Pollard, 77 Tex. 86, 13 S. W. 852.

No error is disclosed by the bill complaining of the refusal of the court to postpone the trial to secure the attendance of witnesses to his good reputation for truth and veracity and honesty and fair dealing, it appearing from the qualification thereof, and from the record, that his good reputation in these respects was established by several witnesses, among them a district judge, without controversy. It appearing from the same bill that appellant was given ample time to converse with the state's witnesses before they testified, the fact that their names are not indorsed upon the indictment was not material. Polk v. State, 69 Tex. Cr. R. 53, 152 S. W. 907; Branch's Tex. Ann. Penal Code, § 514, and cases listed; Fehr v. State, 36 Tex. Cr. R. 96, 35 S. W. 381, 650; Skipworth v. State, 8 Tex. App. 135; English v. State, 85 Tex. Cr. R. 450, 213 S. W. 632.

There is no merit in the bill complaining of the introduction in evidence against appellant of the indictment charging him with theft in another transaction, he having antecedent thereto, in this case, testified as a witness in his own behalf. Admissibility of indictments in such cases for other felonies on the issue of credibility of the accused as a witness has been asserted in numerous occasions in the opinions of this court. Lights v. State, 21 Tex. App. 313, 17 S. W. 428; Bratton v. State, 34 Tex. Cr. R. 477, 31 S. W. 379; Lee v. State, 45 Tex. Cr. R. 52, 73 S. W. 407; Branch's Ann. Tex. Penal Code, § 167.

One of the bills discloses upon the trial a colloquy of some length between the judge presiding and one of the defendant's attorneys, in the course of which the judge made remarks which are complained of. These were set out in great length in several bills of exceptions, stress being laid upon a...