Mathis v. State, 19148.

• Decision Date: 15 December 1937
• Docket Number: No. 19148.,19148.
• Citation: 111 S.W.2d 252
• Parties: MATHIS v. STATE.
• Court: Texas Court of Criminal Appeals

111 S.W.2d 252

MATHIS v. STATE.

No. 19148.

Court of Criminal Appeals of Texas.

December 15, 1937.

Appeal from District Court, Kaufman County; G. O. Crisp, Judge.

Bill Mathis was convicted of receiving stolen property, and he appeals.

Affirmed.

G. H. Crane and Walter M. Kolleschnig, both of Dallas, for appellant.

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

HAWKINS, Judge.

Conviction is for receiving stolen property, punishment being five years in the penitentiary.

The first count in the indictment charged appellant with the theft of an automobile from Rushing in Kaufman county. The second count charged that appellant received said automobile from some person unknown to the grand jury, knowing it to have been acquired by theft. Conviction was under the second count, the first not having been submitted.

Rushing lived in Terrell, Kaufman county, Tex. On the night of December 15, 1936, his automobile was stolen from his home in Terrell. He missed it the next morning. Some time in February, 1937, his car was found in West, Tex., in the possession of Klodginsky. The car had been repainted and the motor was not the same as was in the car when stolen, but the car was positively identified by the owner from certain peculiarities and marks not necessary to enumerate.

Klodginsky testified that he bought the car from E. J. Jerabek on February 6, 1937, at which time Jerabek turned over to witness a bill of sale or transfer of said automobile purporting to have been given by H. N. Palmer to appellant, Palmer's address appearing therein only as "1016 Edgefield," and his affidavit to the transfer purporting to have been taken before a notary public in Dallas county, Tex., dated December 22, 1936. Klodginsky also produced another transfer to him from appellant of the car, dated February 8, 1937, in which instrument appellant's address is given as 4143 Cole street, Dallas, Tex., the affidavit of appellant having been taken before E. J. Jerabek, a notary public of McLennan county, Tex.

E. J. Jerabek testified that he lived in West, was a dealer in Dodge and Plymouth cars, and had been for four years, and had been in the used car business for twenty years; that he bought the car which he sold to Klodginsky from appellant on January 6, 1937, and appellant gave him a transfer of the car at the time witness bought it; that he had known appellant about eighteen months, and had no knowledge or suspicion that the car was stolen when he bought it.

Appellant was arrested on February 18, 1937, at which time the arresting officers found in his pocket a purported bill of sale or transfer to H. N. Palmer of the car in question, purporting to have been executed by Harry Rubin to said Palmer on December 16, 1936.

The State produced Harry Rubin, who testified that he lived in Fort Worth, Tex., and was in the "auto wrecking business"; that he had known appellant under the name of H. N. Palmer for two or three months, and thought he was in the "used car" business in Dallas; that on December 17, 1936, witness sold appellant — as Palmer — a "model A Ford motor, '30 model." The number of said motor was 3206738; that the sale was made at witness' place of business in Fort Worth; that witness had at other times also sold Palmer motors. Witness identified a bill of sale evidencing the sale of the motor to Palmer.

It may be stated here that the number of the motor, 3206738, sold to appellant under the name of Palmer was the motor in the car when found in Klodginsky's possession, and is the motor number appearing in all of the various bills of sale or transfers figuring in the case, but was not the number of the motor in Rushing's car when it was stolen.

Appellant appears to have used both the names of Bill Mathis and H. N. Palmer as it suited his convenience. When called to trial under the name of Bill Mathis, he sought a continuance, setting up in the application therefor that in truth and in fact he bought the car from H. N. Palmer of 1016 Edgefield street, Dallas, and paid for same; that he could prove by Palmer that the latter bought the car in Fort Worth and sold it to Mathis in Dallas. Appellant did not testify himself, but offered through the witness Klodginsky the bills of sale purporting to have been executed by H. N. Palmer to W. J. Mathis, and also the bill of sale from W. J. Mathis to Klodginsky. The State introduced that portion of the application for continuance above referred to.

From bill of exception No. 1 it appears that appellant reserved exception to the court's refusal to give a special charge which would have told the jury, unless they believed from the evidence beyond a reasonable doubt that appellant received the car in Kaufman county, to acquit appellant, and that he could not be legally convicted if he received or concealed the property in Tarrant county or Dallas county. The prosecution was in Kaufman county, where the theft occurred. The court properly refused the charge in view of article 200, C.C.P. (1925), which provides that: "Receiving and concealing stolen property may be prosecuted in the county where the theft was committed, or in any other county through or into which the property may have been carried by the person stealing the same, or in any county where the same may have been received or concealed by the offender."

It is our understanding from such article that a prosecution for receiving or concealing may proceed in the county where the theft was committed, regardless of where the property was received or concealed. Mooney v. State, 76 Tex.Cr.R. 539, 176 S.W. 52; Uhl v. State, 105 Tex. Cr.R. 566, 289 S.W. 404.

The only other bill of exception in the record raises the question as to the sufficiency of the evidence, appellant's contention in that regard being based on two propositions; the first being that the indictment alleged that appellant received the car from some person to the grand jurors unknown, and that no evidence was introduced in support of said averment, hence the prosecution fails. There was no direct evidence offered on the subject....