Haines v. State, 19603.

• Decision Date: 06 April 1938
• Docket Number: No. 19603.,19603.
• Citation: 116 S.W.2d 399
• Parties: HAINES v. STATE.
• Court: Texas Court of Criminal Appeals

116 S.W.2d 399

HAINES v. STATE.

No. 19603.

Court of Criminal Appeals of Texas.

April 6, 1938.

Rehearing Denied May 18, 1938.

Commissioners' Decision.

Appeal from District Court, Jim Wells County; L. Broeter, Judge.

H. C. Haines was convicted of theft of property, and he appeals.

Affirmed.

J. P. Rogers, of Houston, Ray Holder, of Dallas, and Lillian Reynolds, of Austin, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

Conviction is for theft of property over the value of $50; punishment is assessed at confinement in the State Penitentiary for a term of three years.

The record shows that on or about the 20th day of May, 1937, appellant appeared at the office of L. W. Capps' Drilling & Construction Company in Houston, Tex., and engaged a truck and driver to haul some oil well pipe. He went with the truck to Wharton, arriving there some time after 1 a. m. He and the driver loaded 35 joints of 2" pipe which was stacked alongside a fence, took it to Luling, and appellant sold the same to the Jones Supply Company. He paid the truck driver $40 for his services and the two of them returned to Houston. A short time later, he made arrangements with the same company to take a truck to Victoria. The truck driver informed Mr. Capps that appellant made these trips at night, loading and hauling the material under cover of darkness. Believing that appellant might be stealing the property, Mr. Capps informed the officers. They agreed with him to assist in catching appellant if he was engaged in stealing the material. On July 2 appellant again engaged a truck and driver to go to Falfurrias. Mr. Mitchell, the driver who had previously accompanied appellant, was directed to go with him. When the two had reached Falfurrias, appellant directed Mitchell to drive out of town to a field and stop. Appellant soon came from the field, carrying a pair of Wilson tongs. He put them in the truck and made several trips, bringing back more property. When the load was completed, they had two sets of Wilson tongs, 1 set of 4" slips, and one set of 4" elevators. They drove to Lockhart, where one set of the Wilson tongs was sold to Buck Alexander for $100. They then left for Houston, but, upon reaching Richmond, appellant was arrested and placed in jail by Mr. Capps, Mr. Mayer, a highway patrolman, and the sheriff of Fort Bend county. The state's testimony showed that the value of the property taken was $280. Appellant did not testify or offer any affirmative defense. He sought to show that the value of the allegedly stolen property was less than $50, with the view, no doubt, to reducing the offense to a misdemeanor.

We find three bills of exceptions in a supplemental transcript. Each of these is shown to have been filed more than 30 days after the adjournment of the court, and there is no order extending the time in which to file the same. In the absence of a showing that the time for filing bills was extended by the court and such order duly entered upon the minutes of the court, the same cannot be considered by us. See Cupp v. State, 118 Tex.Cr.R. 238, 38 S.W. 2d 1102.

At the conclusion of the State's testimony, appellant filed a motion requesting the court to strike out the testimony of Capps and Mitchell on the grounds that they were accomplices to the offense. This the court declined to do, and we think properly so. Even if they should be accomplices as a matter of law, this would not make them incompetent witnesses.

Appellant, in due time, requested the following special instruction: "You are instructed that the testimony offered by the witnesses, Harvey Mitchell, L. W. Capps and Ernest Mayr is, in law, considered to be accomplice testimony, and unless you believe said...