King v. State
| Decision Date | 06 February 1907 |
| Citation | 100 S.W. 387 |
| Parties | KING v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Harris County; J. K. P. Gillaspie, Judge.
Charley King was convicted of theft, and appeals. Affirmed.
Jas. R. Masterson, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.
Indictment was returned into court on March 30, 1906, charging appellant with theft of 6,000 cigars, of the value of $195, ownership being alleged in C. W. Sedgwick.
It is contended there is a variance in regard to ownership between the allegation and the evidence. Substantially, in regard to this phase of the case, the record discloses that Keller & Co. had shipped 12,000 cigars from New Orleans to Houston, Harris county, over the lines of the Texas & New Orleans Railway Company; that they had reached the depot of this railway company, and were stored for delivery to the consignee; that Sedgwick was in charge of the entire freight department, which seems to have minor departments, in charge of subordinate clerks, but Sedgwick had control and management of the entire business, including these clerks. They were subject to his orders and directions. It is stated by one of the witnesses, Matt Johnson, that Mr. Shipp was on watch as clerk for the Texas & New Orleans Railway Company at the time the goods were taken out; that Mr. Shipp was downstairs and had charge of the delivery of whatever freight was in that particular department. As before stated, Sedgwick was in charge of the entire freight department, and Shipp, it seems from this testimony, one of his clerks, was supposed to be in charge of this immediate part of the depot. We do not believe these facts constitute a variance. Sedgwick was, in fact, in charge of it. His office was at the depot, and he had entire direction and control of the whole matter. Nor is there any error on the part of the state in failing to prove the nonconsent of Shipp. If appellant, in fact, had consent of Shipp to take the goods, it would devolve upon him to prove that fact. These matters, we think, have so often been decided that it is unnecessary to cite the cases.
A bill of exceptions recites that while Keller was testifying in behalf of the state, and concerning the ownership of the 12,000 cigars, of which the 6,000 alleged to have been stolen was a part, that they had not been received by him, and that he had gotten all of the cigars from the police station except one box of 50 cigars, he was asked if his contract or order for the purchase of said 12,000 cigars of the merchant in New Orleans from whom he ordered same, and the invoice thereof showing quantity, quality, and price, was not in writing and in his possession, to which he answered in the affirmative, and appellant objected to the oral evidence of the order for purchase and invoice above, tending to show ownership of said cigars in Keller, because the writings were better evidence, and that, no actual possession or receipt being shown before the alleged theft, no ownership in Keller was established. The court overruled the objection and permitted the witness to detail the facts about his purchase, price, quality, and quantity of the cigars ordered by him from the New Orleans merchant. We deem it hardly necessary to discuss whether this would be error or not. Usually the written evidence is better than oral evidence where the fact is in writing—that is, it is a primary evidence—but this was a collateral matter that was really not necessary to be shown. It would make no real difference and add nothing to or detract, as we understand, from the case, nor have an injurious effect in any way upon appellant, that Mr. Keller was permitted to testify that he had ordered the 12,000 cigars. They had not been reduced to his possession. It was not necessary to prove ownership in him, and it was not necessary to show it in the Keller Company. It was abundantly shown that the property had not been delivered to the consignee, and that the goods were shipped from New Orleans over the Texas & New Orleans Railway Company to Keller & Co., at Houston. The mere fact that Keller was permitted to testify that he had given a written order for a number of cigars, quality and price was immaterial, at least is not of sufficient importance to require a reversal of the judgment.
Another bill of exceptions is reserved to the overruling of a motion to quash the indictment. The contention is that the grand jury that returned the indictment was not a legal one, by reason of the fact that Philip Carson and W. T. Carter, two of the jurors, were not qualified to sit on such grand jury by reason of the fact that neither of them had paid their poll tax for the year 1905. As before stated, this indictment was returned in court on the 30th of March, 1906. There is nothing in this contention. The act of the 29th Leg. p. 207, c. 107, amends article 3139 of the Revised Statutes of 1895, so as to read as follows: "(1) He must be a citizen of the state and of the county in which he is to serve and qualified under the Constitution and laws to vote in said county; provided, that his failure to pay poll tax as required by law shall not be held to disqualify him for jury service in any instance." Theretofore the law had provided that the court would only be authorized to call upon citizens for jury service who had not paid their poll tax, when it was made apparent that sufficient jurors could not be obtained otherwise, but the latter act has eliminated all this question, and it is neither a disqualification or a cause for challenge that the juror has not paid his poll tax. So there is nothing in the contention that Carson and Carter were illegal grand jurors. There is another reason why the motion to quash is not well taken, and that is there was no challenge made to the jurors at the time of the impaneling of the grand jury. The motion to quash was made some 10 months after the return of the indictment, and at a subsequent term of the court. The latter question has been often decided in this state, and it is unnecessary here to cite the cases.
There is also a bill of exceptions to the manner of impaneling the jury to try the case. Two of the jurors on the list given to defendant answered that they were not qualified voters in Harris county; that they had not paid their poll tax for 1905 prior to 1st of February, 1906. Said jurors, Taylor and Peabody, were then objected to by appellant on the ground that they were not qualified jurors, and that appellant, therefore, had a right to challenge for that cause said jurors, and was not required to challenge them peremptorily. This objection of appellant was overruled, and there remained of the list 11 jurors, and Taylor and Peabody were among the number. The action of the court was correct.
Special charges Nos. 1, 2, and 3 presented the question to ...
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