Park v. State

• Decision Date: 25 June 1915
• Docket Number: (No. 3630.)
• Citation: 179 S.W. 1152
• Parties: PARK v. STATE.
• Court: Texas Court of Criminal Appeals

179 S.W. 1152

PARK v. STATE.

(No. 3630.)

Court of Criminal Appeals of Texas.

June 25, 1915.

On Motion for Rehearing, November 17, 1915.

Appeal from District Court, Bastrop County; Ed R. Sinks, Judge.

F. L. Park was convicted of theft, and he appeals. Affirmed, and motion for rehearing overruled.

G. O. Brown, of San Antonio, Aaron Burleson, of Smithville, and John T. Duncan, of La Grange, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of the theft of some automobile tires of more than the value of $50, and his punishment assessed at the lowest prescribed by law.

This is a companion case to 3631 against the same appellant, for burglary, this day decided. 178 S. W. 516. The burglary case was tried first. Much of the testimony is the same in both cases. We have carefully read, studied, discussed, and compared the testimony in each case, one with the other. The testimony in this case is much fuller and of additional facts from what was proven in the burglary case. For instance, in this case the waybill was produced, identified, and introduced in evidence, and the witnesses testified thereabout; it was not introduced in the burglary case. So was other documentary evidence introduced herein which was not introduced in the burglary case.

We think it unnecessary to detail the evidence herein. There is no bill of exceptions in the record, nor is the motion for new trial therein. The only question raised in this court, and so stated by appellant's attorneys in oral argument when the case was submitted, is whether or not the evidence was sufficient to sustain the verdict; his contention being that it is not. We are of opinion it is. The testimony in this case was sufficient to show, and the jury authorized to find and believe; That the alleged stolen tires were shipped over the Missouri, Kansas & Texas Railway Company of Texas from Dallas, by the shipper on April 14, 1914, to the consignee at Houston in a through shipment, in car 70181, M., K. & T., waybill No. 1761. That the train on which this car was hauled was hauled by a crew from Dallas to Waco. That appellant received it at Waco and hauled it to Smithville, reaching Smithville at 1:20 p. m. April 16th, where he turned over his papers, including said car and its contents, to the local agent there. After reaching Elgin, going to Smithville with this train, appellant told his engineer that he had this car, that it contained automobile attachments, and that the bottom of the door of the car had rotted off. The car reached Houston, hauled by the third crew from Smithville to Houston on April 17th, and when it reached there the seals of the car were shown to be unbroken, but the door of one side was rotted out some 10 to 12 inches, so that a person could pull the door open from the bottom, get in the car, take out the tires, and then get out without breaking the seals. That shortly after this car had been hauled from Smithville he and one Terrell, in Smithville, approached Mr. Eggleston, an automobile man there, went into Eggleston's place of business, called him back privately, and asked him if he did not want to buy some automobile tires. Eggleston replied no. They discussed the matter awhile, but on this occasion, when Eggleston asked where he got the tires, he told him that he had pulled the car door open, swung it open from the bottom and had gotten the tires out of a car. After Eggleston refused to buy them, he asked if there was any place there they could hide them, and Eggleston told him, "No." Another witness testified that about 12 o'clock at night appellant, said Terrell, and one Thurmond hired his buss. The three got in it and had him drive down to the stock pens at the railroad in Smithville. When they reached the stock pens the three got out, were gone about five minutes, and brought back what the witness described and the jury were clearly authorized to believe were automobile tires, put them in the buss, and themselves got back therein. That they drove back towards town again, but before they got there they stopped, all three got out, taking the automobile tires with them, and disappeared. Some of the automobile tires which were shipped in this car and stolen therefrom were afterwards traced to and found in San Antonio and recovered by the railroad. A San Antonio party bought these tires from one Billy Edwards. About this time Phillips loaned Edwards $50, who gave the money to Fred Thurmond, one of the parties who was with appellant and Terrell the night they got the tires when they drove to the stock pens, Edwards stating that the $50 was to pay Terrell for tires that he and appellant were in trouble about, and that he paid the money to Thurmond on the order of Terrell therefor. This is a mere outline of some of the testimony. Taking it as a whole, we think it amply sufficient to sustain the verdict. Whether appellant took the tires from the car while it was standing in the yard at Smithville, or took them from the car before he reached Smithville, would be immaterial, for wherever he first took the stolen property he is substantially and reasonably shown to have been in possession thereof with others at Smithville, and hence, under the law, could be convicted in Bastrop county, where he was tried and convicted.

This writer is of the opinion that the evidence in the burglary case, while not as full as in this case, was sufficient to sustain the verdict in that case.

After most careful consideration we have reached the conclusion that the evidence is sufficient to sustain the verdict in this case, and the judgment is affirmed.

On Motion for Rehearing.

After the rendition of the original opinion herein, appellant's motion was granted for a certiorari to bring up copies of his motion to quash the indictment and his motion for a new trial and his bills of exceptions, which were omitted from the original transcript. The clerk complied and sent up an additional record containing these papers, which are now before us, and they have been duly considered.

Appellant's motion to quash the indictment gives as the only reason therefor "that on yesterday, February 1, 1915, this defendant was tried and convicted in State v. F. L. Park, No. 2040, in this court, for the offense of burglary of a railroad freight car, charged to have been in possession of J. T. Hungate," who is the agent of a certain railroad company, and given two years in the penitentiary, and claiming that he cannot be twice put on trial for the same offense. This case charges him with theft, not burglary. A conviction for theft committed...