Modica v. State

Decision Date14 February 1923
Docket Number(No. 6868.)
Citation251 S.W. 1049
PartiesMODICA v. STATE.
CourtTexas Court of Criminal Appeals

Appeal from District Court, Jefferson County; W. H. Davidson, Judge.

John Modica was convicted of theft, and appeals. Reversed and remanded.

Howth & O'Fiel and Lamar Hart, all of Beaumont, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

The conviction is for theft; punishment fixed at confinement in the penitentiary for a period of seven years.

The record contains many pages, and the bills of exceptions are numerous. However, they have all been considered in connection with the brief of the appellant.

Some matters are mentioned in the brief and motion for new trial which are not reviewable because not preserved by bills of exceptions. See Vernon's Tex. Crim. Stat. vol. 2, p. 536, note 20, and cases cited; also Sharp v. State, 71 Tex. Cr. R. 633, 160 S. W. 369. It would require more words than we feel justified in incorporating in the opinion to discuss in detail all of the matters presented.

The indictment described the property as four cases of oil clothing, six cases of tobacco, five sacks of beans, and one case of milk, giving the value of each. The indictment was not bad for want of more definite description. Branch's Ann. Tex. Penal Code, § 2424; Johnson v. State, 42 Tex. Cr. R. 104, 58 S. W. 69, and other cases listed by Mr. Branch.

Several exceptions to the charge relate to the subject of burglary. The jury acquitted the appellant of burglary, and the references to it passes out of the case.

The indictment contains several counts. The first count charges the burglary of a railroad car, the property of F. W. Nason; the second count charges theft of the same property from F. W. Nason; the third count charges the receiving and concealing of the same property, knowing it to have been stolen; the fourth count charges burglary of a railroad car occupied and controlled by the Beaumont, Sour Lake & Western Railway Company, a corporation; the fifth count charges theft of the same property from the Beaumont, Sour Lake & Western Railway Company, a corporation; and the sixth count relates to receiving and concealing of the same property, knowing it to have been stolen by some person unknown to the grand jury.

In submitting the case to the jury, the court embraced the two counts charging burglary and the two counts charging theft. The jury returned the following verdict:

"We, the jury, find the defendant, John Modica, guilty of theft of property of $50 or over in value, in counts 2 and 5 of the indictment and assess his punishment at confinement in the penitentiary for seven years."

The court entered a judgment finding the appellant guilty of theft.

In the fifth count, the owner was named as the Beaumont, Sour Lake & Western Railway Company, a corporation. There is no rule of law which inhibits the naming of a corporation as the owner in an indictment for theft. There is nothing in the cases of Green v. State, 82 Tex. Cr. R. 420, 199 S. W. 623; Hartman v. State, 85 Tex. Cr. R. 582, 213 S. W. 939; White v. State, 28 Tex. Cr. R. 71, 12 S. W. 406; or other cases cited by the appellant which is opposed to this rule. On the contrary, the cases of White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879, and Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098, cited by appellant, recognize the sufficiency of an indictment naming the corporation as the owner. They suggest that a better practice would be to place the ownership in an individual. The practical value of this suggestion is referable to the proof rather than the averment, in that the proof of want of consent is much easier when the averment places the ownership in an individual. On this subject, see Osborne v. State (Tex. Cr. App.) 245 S. W. 928; also Bishop's New Crim. Proc. § 138; Cyc. of Law & Proc. vol. 25, p. 95; Wharton's Crim. Law, § 1180.

After the trial had progressed for several days, the state dismissed the counts in the indictment charging the fraudulent receiving and concealing of stolen property. Upon this dismissal, appellant made a motion in writing to require the court to elect, as between the several counts charging burglary and theft. There being evidence supporting the averment in each of the counts, the court was not in error in refusing to require the state to make an election. Branch's Ann. Tex. P. C. § 2435; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979; Robinson v. State, 56 Tex. Cr. R. 62, 118 S. W. 1037; Bishop's New Crim. Proc. vol. 1, § 451. In the case of Keeler v. State, 15 Tex. App. 113, cited by appellant, the practice pursued in the instant case is commended in the opinion written by Judge Hurt. The annotations of that case in Rose's Notes on Texas Reports (1910 Ed.) vol. 5, p. 349, approve the rule announced in the Keeler Case.

On the trial, the state introduced evidence tending to show that the witness Scott had stolen property from a mercantile establishment and that the appellant had received it. After the dismissal of the counts charging the receiving of stolen property, the court instructed the jury that this evidence of the witness Scott was not to be considered against the appellant. The court had stated in admitting this evidence that it was on the count in the indictment charging the receiving and concealing of stolen property. The state introduced testimony to the effect that on the 7th of August there had been burglary of freight cars belonging to the railroad company named in the indictment, and also introduced evidence tending to connect the appellant with the burglary and also with the possession of the fruits of that crime, also showing that he had been indicted for that offense and that he had also been indicted for other alleged thefts and burglaries. The court instructed the jury that the indictments for the other offenses of burglary and theft could be considered alone upon the issue of the credibility of the appellant who testified as a witness in his own behalf and as bearing upon the system, according to the state's theory, in which the offense on trial was committed. We do not find any bill of exceptions to the admission of this testimony, and we think the manner in which the jury was instructed with reference to it is not subject to the objections made.

A system of railroads known as the Gulf Coast Lines extends from New Orleans to Brownsville. One of the connecting lines constituting this system is the Beaumont, Sour Lake & Western Railway Company. A part of this line is situated in Jefferson county and in the city of Beaumont, where it maintains yards and terminals. The local agent of that company at Beaumont at the time the offense was charged to have taken place was F. W. Nason. In the yards of the Beaumont, Sour Lake & Western Railway Company situated at Beaumont there was car No. 2215, belonging to the New Orleans, Texas & Mexico Railroad Company, and car No. 262321 belonging to the New York Central Railroad Company. These cars were standing in the yards of the Beaumont, Sour Lake & Western Railway Company at Beaumont on the night of the 17th day of August, 1921. They had each been loaded with merchandise delivered to that railway company for shipment. The employees of the railway company had loaded the cars and placed seals upon them, and they were placed in the yards in order that they might be taken to their destination. The merchandise was checked into the cars by an employee of the company, who was a witness, and who had personal recollection of the property. On the night of the 17th of August these cars were broken open, and the merchandise described in the indictment was taken from them. The parties were caught in the act of removing the stolen property, and the witness Williams, who testified as an accomplice, and the appellant were identified as being present at the time. They were both arrested on the ground.

The stolen property was recovered. A part of it was on the ground near the truck and the cars from which the property was taken, and the remainder was found on appellant's premises in the house occupied by McCloney. The value of the property was proved.

In appellant's brief complaint is made of the refusal of the court to grant the application for continuance. We think the court was warranted in overruling it for want of diligence to secure the absent witness. However, we find no bill of exceptions taken to its refusal, and for that reason the matter is not presented for review. Branch's Ann. Tex. P. C. § 304.

In instructing the jury upon the possession or ownership, the court stated, in substance, that by ownership or possession was meant the actual care, control, and management thereof; that the possession might be either actual or constructive; that constructive possession was that possession which the law annexes to the legal title or ownership of property when there is a right to the immediate actual possession. As applied to the facts of the instant case, this charge was not erroneous in our judgment. The railroad cars were in the yards of the railroad company, all of whose property situated at Beaumont was under the care, control, and management of the agent, Nason. In them there had been placed property which was in his possession as agent and which belonged to the railway company; and, according to his directions, the cars had been sealed and were ready for shipment. He was not present at the cars at the time the seals were broken by the appellant and his companions, but the property was still under his care, control, and management. It was not improper for the jury to understand that his absence from and immediate touch with the cars was not incompatible with his possession. See Cameron v. State, 44 Tex. 652; Webb v. State (Tex. Cr. App.) 44 S. W. 498; Parks v. State (Tex. Cr. App.) 89 S. W. 1064.

Nason was the agent at Beaumont of the Beaumont, Sour Lake &...

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