Kaufman v. State

• Decision Date: 14 May 1913
• Citation: 159 S.W. 58
• Parties: KAUFMAN v. STATE.
• Court: Texas Court of Criminal Appeals

159 S.W. 58

KAUFMAN v. STATE.

Court of Criminal Appeals of Texas.

May 14, 1913.

On Motion for Rehearing, June 18, 1913.

Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.

Sam Kaufman was convicted of concealing stolen property, and he appeals. Affirmed.

Lively, Nelms & Adams, of Dallas, and W. F. Ramsey, of Austin, for appellant. Ben Savage, of Dallas, and C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted for concealing stolen property and his punishment fixed at eight years in the penitentiary.

Most, if not all, of the questions attempted to be raised by him are by some 60 bills of exception. A large number of them were refused outright by the court, stating that no exceptions were made and no bill taken on the trial. Of course we cannot consider them.

The state claims that the others in no way comply with the rules long and well established, so that this court can review the questions attempted to be raised by them. We will quote two of them in full, except their headings, which merely state the number, style of the cause, and the court where pending. One is: "Be it remembered that upon the trial of the above-entitled and numbered cause the following proceedings were had: Fletcher Howard, a witness for the state, over the objection of the defendant, was permitted to testify that in the latter part of May he (the witness) stole some eggs from the Santa Fé yards and delivered the same to the defendant herein, and that the defendant paid him $24 for same, to which defendant objected because same was evidence as to an extraneous and independent matter and was immaterial, irrelevant, and hurtful to defendant, to which the defendant then and there excepted at the time and now tenders this his bill of exceptions and asks that the same be approved, signed, and filed as a part of the record in this cause. Which accordingly done, this ____ day of October, A. D. 1912, with this explanation: This matter was admitted as a part of the evidence of an extraneous theft committed under the contract with this witness and other negroes, and the goods delivered to the defendant, and was admitted as evidence of the `system.'"

Another is: "Be it remembered that upon the trial of the above-entitled and numbered cause the following proceedings were had: W. H. Black, a witness for the state, over the objection of the defendant, was permitted to testify that he had shipped 100 cases of eggs from Clifton, Tex., to Ben Ablon at Dallas, Tex., and that thereafter he came to Dallas, Tex., and went to Ben Ablon's cold storage house and there found several cases of the eggs that were packed like eggs he shipped, and that said several cases of eggs had the name Sam Kaufman on same; that at the time he went to Ben Ablon's cold storage house and there looked at said eggs; that he had two detectives of the city of Dallas with him; that he found two car loads of eggs in said storage house; and that the cases he saw compared with the ones he packed and shipped from Clifton to Ben Ablon at Dallas; defendant objected because same was as to extraneous and independent matter in no way connected with the case on trial, because there was no testimony showing that the name `Sam Kaufman' was placed upon said egg cases by the defendant herein or that same was done with his knowledge or consent, and because same tended to prejudice the jury against the defendant, was irrelevant and immaterial, prejudicial, and hurtful to defendant, to which the defendant then and there excepted at the time and now tenders this his bill of exceptions and asks that the same be approved, signed, and filed as a part of the record in this case. Which is accordingly done this ____ day of ____, A. D. 1912, with this explanation: This was part of the evidence of extraneous crime admitted by the court as evidence of `system.'"

These are but samples of all of the others. Some of them may have a little more in the way of objections, others less. Not one of them is in such condition as to require or authorize the court to consider them. Conger v. State, 63 Tex. Cr. R. 327, 140 S. W. 1112; Ortiz v. State, 151 S. W. 1058; James v. State, 63 Tex. Cr. R. 77, 138 S. W. 612. Several other bills attempt to present that the county attorney was permitted to ask a certain claimed leading question. Each of these are as defective or more so than the others, but in no event do they present any error. Carter v. State, 59 Tex. Cr. R. 73, 127 S. W. 215.

One of the most important questions attempted to be raised by most of these bills is appellant's contention that proof of other like crimes, or crimes of the same nature, alleged to have been committed by appellant, were inadmissible for any purpose. The rule is that independent crimes by an accused are ordinarily inadmissible; that an accused cannot be convicted of the crime for which he is on trial by showing that he committed at other times like crimes. But, while this is the rule, there are exceptions to it as well established as the rule itself. In fact, such exceptions might be considered and are also rules as well established as the said rule above mentioned. These exceptions are stated by Mr. Wharton, one of the ablest law-writers in this country, in his volume 1, § 31, on Criminal Evidence, as follows: (1) As part of the res gestæ. (2) To prove identity of person or of crime. (3) To prove scienter or guilty knowledge. (4) To prove intent. (5) To show motive. (6) To prove system. (7) To prove malice. (8) To rebut special defenses. (9) In various particular crimes. In section 35 he says: "Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge." Again in section 39 he says: "When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system. In order to prove purpose and design, evidence of system is relevant; and in order to prove system, collateral and isolated offenses are admissible from which system may be inferred." These exceptions or rules are so well established, have been so often applied and held by this court, that we think it is unnecessary to collate them; but see Melton v. State, 63 Tex. Cr. R. 365, 140 S. W. 230, where a few of the cases and authorities are cited. See, also, Hennessy v. State, 23 Tex. App. 355, 5 S. W. 215; Mason v. State, 31 Tex. Cr. R. 306, 20 S. W. 564; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; Pelton v. State, 60 Tex. Cr. R. 412, 132 S. W. 480, Ann. Cas. 1912C, 86; Long v. State, 39 Tex. Cr. R. 545, 47 S. W. 363. It is needless to cite the many other cases on these points.

The testimony of Fletcher Howard, who was an accomplice and a negro, was to the effect that he had worked for appellant and for appellant's brother and father, who run a mercantile establishment in Dallas for a number of years prior and up to the time the offense charged in this case, commencing work with him and them in 1905 or 1906, and had worked for them off and on from that time up to the time of the offense charged in this case or shortly prior thereto; that his work therein was that of a porter in their saloon and driving a delivery wagon for appellant and his said father and brother, or appellant and one or the other of them in their grocery business; that for the years 1909 to 1912, inclusive, he had a contract with appellant and with him and his brother and father to the effect that he and his associates were to steal goods from the railroad cars and wholesale houses in Dallas, and appellant and they would buy them from him and his associates. And this contract was carried out by both of these parties during these years. Then he detailed several such transactions during the year 1912, prior to the time this offense was charged to have been committed; that in every instance appellant bought these stolen goods from him and his associates and paid him and them therefor, knowing at the time that they were stolen and that all these transactions were carried out in consummation and in accordance with said trade between them. It is unnecessary to detail these various transactions. This accomplice Howard was corroborated amply and sufficiently by other witnesses and circumstances tending to show and showing the said several transactions as testified to by Howard. The theft by Howard and his associates of the goods charged to have been received by appellant in this case was clearly and unquestionably established, not only by Howard, the accomplice, but by many other witnesses and circumstances clearly detailed in the evidence. As to these particular goods in this case, Howard testified that in the evening before these goods were stolen at night he and his associate, who was with him and helped steal them, were to deliver them in appellant's barn for him, situated close to his said store and residence in Dallas. They were so delivered and found in said barn immediately after their delivery therein. It was also shown that appellant kept his horses at this barn and that he had charge of said barn. The goods charged to have been stolen and received by appellant in this case consisted of a case of dry goods; different bolts thereof containing, of one grade, 2,747 yards worth about 17½ cents per yard, and 768½ yards of another...