Lockhead v. State

• Decision Date: 18 June 1919
• Docket Number: (No. 5414.)
• Citation: 213 S.W. 653
• Parties: LOCKHEAD v. STATE.
• Court: Texas Court of Criminal Appeals

213 S.W. 653

LOCKHEAD v.STATE.

(No. 5414.)

Court of Criminal Appeals of Texas.

June 18, 1919.

Appeal from District Court, Kaufman County; Joel R. Bond, Judge.

A. S. Lockhead was convicted of receiving and concealing stolen property, and appeals.Reversed and remanded.

Thos. R. Bond, of Terrell, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

MORROW, J.

The appellant was charged with receiving and concealing stolen property from Allen Brittian.

The property was described in the indictment as 4 shotguns and a case containing 500 shells.Each of the shotguns was valued at $9 and the shells at a total value of $15.The testimony of Brittian and one Raymond Monday was used by the state.Both of these witnesses testified to their participation in the theft of the property and its subsequent delivery to the appellant.

Exception was reserved to the court's charge on accomplice testimony.The charge was defective, in that it authorizes a conviction thereon if it was believed by the jury to be true and was corroborated by other testimony tending to connect the appellant with the offense.It should also have instructed the jury that it was necessary that the accomplice testimony in connection with the other evidence should show the guilt of appellant beyond a reasonable doubt.SeeStandfield v. State, 208 S. W. 537, and cases therein referred to.The error is not available, however, for the reason that the court, at the appellant's request, gave a charge upon the subject which corrected the defect.The court, however, should have complied with the appellant's request to instruct the jury that one of the accomplices could not, by his testimony, corroborate the other.Roberts v. State, 44 Tex. Cr. R. 267, 70 S. W. 423;Heath v. State, 7 Tex. App. 464.

The evidence disclosed that the appellant received the property described in the indictment.It was also shown that it was not all delivered to the appellant at one time, but that Brittian and Monday, after stealing the property, hid it under a church, and that there was first delivered to appellant 5 boxes of shells, for which he paid $2.50; that he next received 15 boxes of shells and 2 shotguns, and on their receipt paid $16, and later received 2 shotguns at which time he paid $8.It was the theory of the state that prior to the theft the appellant had agreed to purchase any property that the accomplices might steal, and upon this theory the state insists that, while the goods were delivered in parcels, the aggregate value controls the grade of the offense.On this phase of the case, the theory of appellant is that each delivery constituted a separate sale and transaction, and that upon the value of the property delivered in each instance would depend the grade of the offense.There was evidence supporting appellant's theory.In fact, his evidence presented the theory of innocent purchase, while that of the state presented the theory of guilty knowledge.In the state's testimony, while it was contended that the appellant had agreed with the thieves that he would buy their loot, it was not contended that a price was agreed upon, but it was undisputed that the sales were not completed until negotiations were made in which the price was agreed upon.The appellant requested special charges presenting his theory that if the transaction constituted separate sales, his offense, if guilty, would be that of a misdemeanor; it being conceded that it required the entire property to exceed the value of $50.There was error in refusing to submit this theory.The state insists, however, that this was harmless, for the reason that there was a general verdict which includes...