Hicks v. State, 17488.

Citation83 S.W.2d 349
Decision Date01 May 1935
Docket NumberNo. 17488.,17488.
PartiesHICKS v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from District Court, Parker County; J. E. Carter, Judge.

Clarence Hicks was convicted of fraudulently receiving and concealing an automobile knowing it to have been stolen, and he appeals.

Judgment and sentence reformed and, as reformed, affirmed.

R. B. Hood, of Weatherford, and Jno. L. Poulter, of Fort Worth, for appellant.

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

KRUEGER, Judge.

The appellant was tried and convicted of the offense of fraudulently receiving and concealing an automobile knowing it to have been stolen, and his punishment was assessed at confinement in the state penitentiary for a term of two years.

The testimony adduced by the state shows that on the 26th day of August, A. D. 1934, Mr. J. J. Parker drove into the city of Fort Worth in his 1931 model Ford automobile which he parked between Main and Houston streets while he attended a picture show, and when he returned to where he had parked his car it was gone. At the time the car was taken the reasonable market value of same was $300. Some time thereafter, the car was found in the possession of the appellant at Poolville, in Parker county, Tex. When the constable at Poolville first saw the appellant driving said car it carried license plates with the following numbers thereon, to wit, A-40175, which had been issued in Wise county to one Cecil Rhodes. The next time said officer saw appellant driving said car it carried license plates with the following numbers: 798704, which had been issued to Jim Sells, and at the time the officers took charge of the car it carried license plates issued to John Gilliland. An examination of the car revealed the fact that the engine number had been changed from 4307760 to 4307780, and the license plates which were on the car at the time it was stolen had been removed. Lawrence Willhite testified for the state that he stole the car at Fort Worth and drove it to his father's home in Parker county; that he changed the engine number and removed the license plates which it carried at the time he stole it and threw them into a well at appellant's home at the suggestion of appellant; that he sold the car to the appellant for the sum of $36, and advised appellant at the time that it was a stolen car, whereupon appellant replied that he knew it was "hot" as he, Willhite, did not have enough money to buy a car like that; that prior to the time he delivered the car to appellant he had borrowed a set of license plates from Cecil Rhodes of Wise county which he had put on the car; that a few days later Rhodes came to get his license plates, and he accompanied Rhodes to appellant's home, obtained the license plates, and that appellant carried Rhodes home in the car.

The appellant testified in his own behalf and denied that he knew the car was stolen; that he had loaned Willhite $26 which was secured by a watch; that Willhite came to his, appellant's, home in the car and wanted to leave it and get his watch; that he let Willhite have the watch and gave him an additional sum of $10 for the car. He denied that Cecil Rhodes came to his home for any license plates, or that he carried him home. He said that the license plates which were on the car at the time he received it were removed from the car when he was attending a dance, and then he borrowed some license plates from Jim Sells as he was going to drive over into Wise county, but on his return Jim Sells came and got his license plates. He also denied knowing anything about John Gilliland's license plates being on the car. His wife corroborated him as to the delivery of the car by Willhite, the amount of money paid, and the return of the watch to Willhite.

By bill of exception No. 1 the appellant complains of the action of the trial court in overruling his motion to quash the indictment because it is vague and indefinite and does not state what kind or character of an automobile he is charged with receiving and concealing. We cannot agree with the appellant in his contention. The indictment is in the usual form. The necessity for stating the kind and character of automobile is not any greater than to state the kind and character of a horse; all that is necessary to be stated is that it is a horse.

By bill of exception No. 2 the appellant complains of the action of the trial court in permitting the witness Lawrence Willhite to testify in the case because the witness had been convicted and given a suspended sentence. The bill fails to show when the conviction took place, whether it was before or since the enactment of an amendment to article 708, Vernon's Ann. C. C. P., which permits convicts to testify. See Fitzgerald v. State, 118 Tex. Cr R. 64, 39 S.W.(2d) 47; Stanley v. State, 120 Tex. Cr. R. 450, 48 S.W.(2d) 279.

By bill of exception No. 3 the appellant complains of the action of the trial court in not instructing the jury on the law of circumstantial evidence. Under the facts in this case, the court was not required to charge on circumstantial evidence because the accomplice Willhite testified that the appellant knew at the time he received the car that it was a stolen car, and in support of the views herein expressed we refer to the case of Wilson v. State, 115 Tex. Cr. R. 308, 28 S.W.(2d) 804.

By bill of exception No. 4 the appellant complains of the following paragraph of the court's main charge: "You are further charged that if you believe and find from the testimony beyond a reasonable doubt that the defendant received the property in question, said automobile, and thereafter handled said automobile in a manner that would throw the owner of said automobile or others making investigation of the theft of same off their guard in their search and investigation of same, this will amount to concealing said automobile." The only objection urged to the charge as shown by the bill of exception is that it invades the province of the jury and is a charge upon the weight of the evidence and calculated to mislead and confuse the jury in their deliberations in an effort to reach a verdict under the law and the testimony. We do not believe that the objection to said charge is well taken under the authority of Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580, and Barker v. State, 109 Tex. Cr. R. 67, ...

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