Pieratt v. State

• Decision Date: 18 December 1940
• Docket Number: No. 21313.,21313.
• Parties: PIERATT v. STATE.
• Court: Texas Court of Criminal Appeals

146 S.W.2d 997

PIERATT v. STATE.

No. 21313.

Court of Criminal Appeals of Texas.

December 18, 1940.

Rehearing Denied January 29, 1941.

Commissioners' Decision.

Appeal from Fayette County Court; E. A. Arnim, Jr., Judge.

H. C. Pieratt was convicted of receiving stolen property under the value of $50, and he appeals.

Affirmed.

C. C. Jopling, of La Grange, for appellant.

John C. Marburger, Co. Atty., of La Grange, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is knowingly receiving stolen property under the value of $50. The punishment assessed is a fine of $50.

Appellant first complains of the action of the trial court in overruling his motion to quash the indictment on the ground that it was not charged therein whether the alleged value of the stolen property was the wholesale or retail price. The total value of the property stolen was alleged to be $7.21. This was sufficient to admit proof of its market value at the time and place of the taking. The State was not required to plead its evidence. The market value of the stolen property was a matter of proof according to the well-established rules of evidence. We therefore overrule this contention.

Bill of Exception No. 2 was disallowed by the trial court on the ground that no objection was made to the testimony at the time it was offered. Consequently we are not authorized to consider the same.

By Bills of Exception Nos. 3 and 4 appellant complains of the court's action in declining to instruct the jury to return a verdict of not guilty. His contention was then and is now that the evidence is insufficient to justify and sustain a conviction. We are not in accord with his contention. The State's testimony shows that on the day in question two negro boys, who admitted stealing the grease cups, faucets and pipes from two cotton gins located in the town of La Grange, borrowed some wrenches and towsacks from appellant, and later in the day they returned to appellant's place of business with the stolen property in the sacks and sold it to him at 2½ cents per pound; that when they brought it to appellant's place of business it had some iron and wood handles on it, and the oil or grease cups were glass bulbs encased in brass; that he (appellant) requested them to break these cups. The character of the property itself showed that it was taken from some machinery, the kind and character of which the negro boys would not be likely to own or possess.

It was shown by the testimony of the sheriff that when the theft of the property was reported to him he went immediately to the appellant and inquired of him if he had purchased some brass faucets and cups. He denied that he had purchased any such property. The sheriff then located the negro boys and questioned them. They admitted that they had stolen the property and sold it to appellant. The sheriff then went back to appellant and again inquired of him if he had not purchased from certain named negro boys the property described. He at first denied it saying that he did not know the negroes, but after the sheriff had given him a description of the negro boys he then admitted that he had purchased such property from them.

At his trial the defendant took the witness stand and admitted that he purchased the alleged stolen property from the negro boys but denied that he knew it was stolen property or that he concealed it. He admitted that he bought it at 2½ cents per pound and sold it at 4 or 4½ cents per pound. That appellant bought the property in question is not controverted; that he paid 2½ cents per pound and sold it for 4 cents per pound is not controverted. Consequently the only controverted issues are: First, did he know or have good reason to believe, at the time that he purchased the property, that it was stolen, and, second, did he conceal it? That he concealed it is in our opinion shown by the fact that when the negro boys brought the property to him he demanded that they break it up. This was changing the appearance of the property so that the owners would not likely be able to recognize it when they saw it, which in effect was tantamount to concealment. Whenever stolen property is changed so that its owners would not likely recognize it if they saw it, this is deemed to be a concealment. See Tex.Jur. Vol. 36, p. 343, § 15, and cases cited in notes.

With reference to the issue of knowingly receiving stolen property, we think that the facts and circumstances proven, as hereinabove set out, are sufficient to justify the jury's conclusion that appellant knew that it was stolen property.

Bills of Exception Nos. 5 and 6 have been carefully considered by us and are deemed to be without merit.

Bill of Exception No. 7 reflects the following occurrence: The court prepared his charge in which he gave to the jury two forms of a verdict which they might use as a guide in writing their verdict according to their finding. The form to be used by them in case they found him guilty contained a blank space in which to insert the amount of fine. The other was a form of a verdict to be followed in case they found him not guilty. This charge was submitted to appellant and his attorneys before it was read to the jury. No objection was urged to that part of the charge containing the forms of a verdict. After appellant had made such objections to the main part of the charge as he deemed proper, the court then read the charge to the jury, and at the conclusion of the arguments the charge was delivered to the jurors who took it with them to the jury room where, after some discussion of the case, they wrote their verdict upon a separate slip of paper and returned it into court together with the charge. Some four days later it was discovered that the figures...