Graves v. State

• Decision Date: 16 December 1959
• Docket Number: No. 31186,31186
• Citation: 336 S.W.2d 156,169 Tex.Crim. 595,80 S.Ct. 1256
• Parties: Nathaniel G. GRAVES, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 156

336 S.W.2d 156

169 Tex.Crim. 595

Nathaniel G. GRAVES, Appellant, v. STATE of Texas, Appellee.

No. 31186.

Court of Criminal Appeals of Texas.

Dec. 16, 1959.

Certiorari Denied June 13, 1960.

See 80 S.Ct. 1256.

Bradshaw & Bradshaw, Houston, for appellant.

Dan Walton, Dist. Atty., Howell E. Stone, Asst. Dist. Atty., Houston, and Leon Douglas, State's Atty., Austin, for the State.

WOODLEY, Judge.

The appeal is from a conviction for theft of a radio of the value of over $5 and under $50; the punishment, 30 days in jail.

Appellant was an employee of Keystone Wholesale Jewelry Company in Houston, of which Gordon, the alleged owner, was manager.

Mr. Gordon testified that after closing on December 6, 1958, he checked his Motorola transistor radios and found 19.

The following day, being Sunday, the store was closed bur Mr. Gordon, his wife and several employees, including appellant, worked with the merchandise.

After his employees had left the building Mr. Gordon again checked the Motorola transistor radios and found only 17. An investigation began.

Appellant was arrested near his home and taken to the police station. Later he accompanied officers to his home where a Motorola transistor radio with serial number 54790 was recovered.

Mr. Gordon identified the radio as one missing from the Jewelry Company, relying upon an invoice listing among 18 radios one with Serial Number 54790 preceded by the letter 'O' or 'D'. He explained that the invoice was written up by the shipper and not the maker.

Daniel T. Norris, Assistant Chief of Police of Jacinto, Texas, testified that appellant was arrested by other officers and brought to the police station where he talked with him; that 'we were investigating another party', that as a result of this conversation he went to appellant's home. '* * * the defendant took us to his home and let us in the house and went in with us. * * * He offered to let us in his home.'

Officer Norris further testified that appellant started pointing out items 'that belonged to * * *' and in the bedroom appellant gave him the radio offered in evidence and said 'this belongs to Mr. Gordon.'

Appellant testified at his trial and said that the radio which the officers found in his home was one he had purchased at wholesale at the Keystone Wholesale Jewelry Company and had given to his wife. He denied that he handed the radio to Officer Norris or that he consented to the officers' entry into his home. His version was that he was taken there handcuffed and that his home was searched without his invitation or consent.

The issue was submitted to the jury in the court's charge and the jury was instructed that if they had reasonable doubt that the defendant gave his voluntary consent to the search of his home, or believed he did not consent, to acquit.

The jury resolved the issue against the defendant and there is sufficient evidence to sustain their finding that appellant consented to the entry of his house.

We are unable to agree with appellant's contention that the consent of one who is under arrest is not sufficient to authorize a search of his home. We are aware of no holding to that effect by this Court.

It should be noted that no question is raised as to the legality of the arrest of appellant, and no objection based upon the contention that he was under unlawful restraint is found in the record.

Appellant urges that there is a discrepancy between the description of the missing radio and the radio recovered from appellant because the letter appearing before the serial number on the invoice was not on the radio recovered.

Appellant's statement to the officer that the radio he handed him 'belongs to Mr. Gordon,' and his testimony that it came from the same stock, was sufficient to remove any question as to...