McCutcheon v. State, 21110.

• Decision Date: 05 June 1940
• Docket Number: No. 21110.,21110.
• Citation: 143 S.W.2d 611
• Parties: McCUTCHEON v. STATE.
• Court: Texas Court of Criminal Appeals

143 S.W.2d 611

McCUTCHEON v. STATE.

No. 21110.

Court of Criminal Appeals of Texas.

June 5, 1940.

Rehearing Denied October 16, 1940.

Appeal from County Court at Law No. 2, Harris County; Frank Williford, Jr., Judge.

J. F. McCutcheon was convicted under a complaint and information charging the theft of one commode and tank and one wash basin, and he appeals.

Affirmed.

V. M. Toomey and King C. Haynie (on appeal), both of Houston, for appellant.

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

HAWKINS, Presiding Judge.

Appellant was charged by complaint and information with the theft of one commode and tank and one wash basin alleged to have been the property of Mrs. Tom. B. Turner.

The case was tried before the Hon. Frank Williford, Jr., Judge of the County Court of Law No. 2 of Harris County, Texas, without a jury and resulted in a conviction with the punishment assessed at sixty days in jail.

The stolen property was dismantled and taken from a house belonging to Mrs. Gallager, but which was at the time of the theft under the control, care and management of Mrs. Turner. The latter party discovered that the property was gone Friday or Saturday, about December 8, 1939. She immediately notified Mrs. Gallager, who found the property on the Monday following at the South End Wrecking Company's place of business on Congress Street in Houston. Mr. Mathews was the proprietor of the business mentioned. He testified that on Saturday morning December 9th about seven o'clock appellant came to his place of business and stated that he had started hunting and "stumbled on some second hand fixtures," and wanted to sell them to witness. Appellant told witness he found the things in the weeds, and when they were brought in they had weeds, leaves and grass on them. Later appellant brought to witness' place the things identified by Mrs. Gallager, and at the time also had a water heater and another commode.

At the time appellant sold the property to Mathews he (appellant) gave his name as "Mr. Lee," and so signed his name on the register.

The State relying for a conviction of appellant upon the fact that he was in possession of recently stolen property, it is appellant's position that his explanation made to Mathews of such possession was reasonable and probably true, and would entitle him to an acquittal unless the whole of the evidence shows such explanation to have been false. See Branch's Ann.Tex. P.C., Sec. 2464, 41 Tex.Jur., Sec. 135, p. 218. We recognize the principle invoked by appellant, but taking the case as a whole we think the trial judge was justified in not accepting appellant's explanation as true. The case having been tried by the judge his findings on the facts are the same as if tried by a jury. We quote from Branch's Ann.Tex.P.C. a paragraph of Sec. 2464: "Proof of possession of property recently stolen will sustain a conviction for theft if there are circumstances in evidence which authorize the jury to disbelieve the explanation of such possession, and when such conviction is approved by the trial judge whose duty it is to set it aside if not satisfied from the evidence that defendant is guilty as charged." See also 41 Tex.Jur., Sec. 139; Nichols v. State, 110 Tex.Cr.R. 432, 10 S.W.2d 109; Johnson v. State, 114...