Holt v. State

• Decision Date: 18 May 1898
• Citation: 45 S.W. 1016
• Parties: HOLT v. STATE.
• Court: Texas Court of Criminal Appeals

45 S.W. 1016

HOLT v. STATE.

Court of Criminal Appeals of Texas.

May 18, 1898.

Appeal from district court, Taylor county; T. H. Conner, Judge.

Deat Holt was convicted of theft as an accomplice, and he appeals. Affirmed.

J. M. Wagstaff, W. C. Lasley, and C. M. Christenberry, for appellant. W. W. Walling and Mann Trice, for the State.

HENDERSON, J.

Appellant was convicted of being an accomplice in the crime of theft, and his punishment assessed at confinement in the penitentiary for a term of two years, and he prosecutes this appeal.

The theory of the state tended to show that the $350 alleged in the indictment was stolen from W. F. Rubottom by his son Z. Rubottom; that the same was stolen from the bedroom of the owner on Saturday night, the 12th of February, 1898. Rubottom was a boy about 18 years old, in his father's employ, and slept at his father's house. Appellant, Deat Holt, Ell Carter, and Will Holt it is claimed were particeps criminis with appellant in advising and encouraging him to steal said money. Will Holt was an older brother of appellant, and Ell Carter was a neighbor boy. The state's case mainly depends on the testimony of Z. Rubottom, who testified substantially to the alleged theft, and to the advice and encouragement given him by appellant and Ell Carter. He testified to two prior thefts from his father, in which appellant and Ell Carter participated, as follows: One of $40, some nine months before the theft in this case, and one of $90 about a month before. His testimony tended to show that these boys made a tool of him to steal his father's money, and then proceeded to win or procure it from him under the guise of a game at cards. The witness details the circumstances connected with the prior thefts and the advice given him by appellant and Carter, and how they won the money from him which he had stolen at their suggestion. The testimony of this witness as to this particular game shows that appellant and Carter suggested that he should steal some more money from his father, and that Will Holt and Ell Carter were going to Arizona, and they would invest it for him; that he finally agreed to steal the money. For the purpose of hurrying him up to commit the theft, on the pretext that Ell Carter and Will Holt were going to start to Arizona on Friday, February 11th, they said they would stay over until Monday, the 14th, if he would promise to get the money. He further states that on February 12th, about an hour by sun, Ell Carter and defendant came to the front yard of his father's, and said Will Holt and Ell Carter wanted to leave, and were waiting for him to get some more money, and if he did not get it pretty soon they would leave anyway. They said that Will Holt was at Merkel waiting for Ell Carter. In this connection Ell Carter suggested to witness Z. Rubottom that he get the money and play cards, and get even on what he had lost. Witness told them he did not care to play cards, but would rather let them have it to invest. Ell Carter was to sleep at defendant's house, and he was to come up and let them know if he got the money. Defendant's house was 150 to 200 yards distant from his father's. About 9 o'clock at night they came again, and called witness out, and asked him if he was pretty sure to get the money, and he said he would try; and they said they would wait around the place awhile, and if he did not come out in an hour or two they would be at Deat Holt's house. He succeeded in stealing the money from his father's room, where he was asleep, about midnight. When he got the money he went up to Deat Holt's house, and waked him and Ell Carter up. When he waked the boys, defendant advised him to play cards, and said he would stock the cards and help him (witness) to win back all his losings. The boys got up, and went to his father's barn, and got a lamp, and counted the money. They began playing, Deat Holt dealing the cards, and he and Ell Carter playing the game. Sometimes the game fluctuated, but before day Ell Carter had won all of his money. He asked him to let him have some of it back, but he would not, and told witness if he got into any trouble about it he would help him out if he could. The money was shown to be $230 in gold, the gold being in $20 pieces, except one $10 gold piece, and the balance in currency. The money was missed by W. F. Rubottom on Sunday morning, February 13th. It appears that his father suspected Z. Rubottom, who finally admitted to him that he had gotten the money. He was arrested on that evening at Buffalo Gap, where the theft occurred, and taken to Abilene to be lodged in jail. On the way they met Deat Holt returning from Abilene. On the following Wednesday, Deat Holt was arrested at San Angelo. On his arrest he admitted that he had $100 in gold of the money, which he had deposited with a party in Abilene, before he left Buffalo Gap. This money, in $20 gold pieces, was recovered. Ell Carter was arrested about 30 miles west of Abilene, in a hack, with Will Holt and a party known as "Tennessee," then on their way to Arizona. From him was recovered $294,—$100 in gold and the balance in currency. Will Holt, it seems, was tried before appellant, and was acquitted. Ell Carter was tried after appellant, and convicted. The state relied on a number of circumstances to corroborate the witness Z. Rubottom, which are not necessary here to be stated.

The first question presented by the assignments of error arose on the action of the court in charging the jury on the various counts in the indictment. The indictment contained three counts: The first count charged the theft of the money by Z. Rubottom, and that appellant was a receiver of the same, knowing that the same had been stolen; the second charged appellant with the theft of said money; the third charged appellant as an accomplice in the theft of said money, to wit, that the same was stolen by Z. Rubottom, and that appellant before the theft had advised and encouraged said Z. Rubottom to steal the same. After the evidence was all in, and the argument had been made, the court read its charge to the jury, which submitted alone the first count in the indictment, thus eliminating the other two counts from the consideration of the jury. Thereupon appellant moved the court to instruct the jury to bring in a verdict of not guilty, as the first count was defective. The court's attention being thus called to the defect in the first count, in that it failed to allege the ownership of the stolen property, while the jury were yet in court, and before he had delivered the possession of his...