Nichols v. State

• Decision Date: 31 January 1940
• Docket Number: No. 20606.,20606.
• Citation: 136 S.W.2d 221
• Parties: NICHOLS v. STATE.
• Court: Texas Court of Criminal Appeals

Page 221

136 S.W.2d 221

NICHOLS v. STATE.

No. 20606.

Court of Criminal Appeals of Texas.

January 31, 1940.

Commissioners' Decision.

Appeal from Criminal District Court, Tarrant County; Willis M. McGregor, Judge.

Albert Nichols was convicted of receiving and concealing stolen property, and he appeals.

Reversed and remanded.

T. H. Yarbrough, Donald & Donald, and Boyd Barjenbruch, all of Bowie, and H. R. Bishop, of Fort Worth, for appellant.

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

CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for four years.

At the time the motor of the stolen automobile of Buck Davis, the injured party, was found on the farm of appellant's father-in-law other automobiles and parts of automobiles were also discovered on such farm. The motor, which was alleged to have been taken from the car of Mr. Davis, was hidden under a hay stack. Automobile parts and an automobile which had no connection with the Davis automobile were also concealed at other places on the Etheridge farm. The only circumstance indicating that the automobile and automobile parts last mentioned had been stolen was the fact that they were shown to have been concealed. The state proved the foregoing extraneous matters. Thereafter the court in his charge instructed the jury as follows: "You are further instructed that any evidence in this case concerning any property being on the J. W. Etheridge farm, other than the Plymouth motor introduced in evidence, can be considered by you only upon the question as to whether the defendant knew that the Buck Davis automobile had been stolen, if it was stolen, at the time he received it, if he did receive it, if you consider that such evidence does affect that question, and you will not consider any of such evidence for any other purpose in this case. You will not consider such evidence for any purpose in this case unless you first believe from the evidence, beyond a reasonable doubt, that the defendant knew about such property, if any, and participated in placing it in the location and condition in which it was found on October 15, 1936, if it was."

It is manifest that in introducing proof to the effect that other property on the premises of appellant's father-in-law was concealed, the state was taking the position that such property had been received and concealed by the appellant under circumstances showing his knowledge that it had been stolen. As indicated by the charge of the court, this proof was introduced by the state in an effort to show that when appellant received the automobile of Buck Davis he knew that it had been stolen. In limiting such proof, the charge of the court was deficient, in that it failed to instruct the...