Poon v. State, 14945.

• Decision Date: 06 April 1932
• Docket Number: No. 14945.,14945.
• Parties: POON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 307

48 S.W.2d 307

POON v. STATE.

No. 14945.

Court of Criminal Appeals of Texas.

April 6, 1932.

Commissioners' Decision.

Appeal from District Court, Bexar County; W. S. Anthony, Special Judge.

N. M. Poon was convicted of fraudulently receiving stolen property, and he appeals.

Reversed and remanded.

Bat Corrigan and Leonard Brown, both of San Antonio, for appellant.

Walter Tynan, Dist. Atty., and Bernard Ladon, Asst. Dist. Atty., both of San Antonio, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is fraudulently receiving stolen property; the punishment, confinement in the penitentiary for five years.

The place of business of Morris Block was burglarized and approximately $1,400 worth of cigars taken therefrom. Mr. Block testified that his store was entered on February 14, 1931, and that on April 3d of the same year he went to appellant's place of business and found therein approximately $200 worth of cigars. Touching the identification of the property, he testified as follows: "I identified them as my property, because nobody else in Texas handled those goods, Papier Mais, Ottoman Riz, Abadie and Salamander. There is nobody in San Antonio that would know where to get them. And I found a few Yellow Cab cigars in his store. Nobody else in San Antonio handles Yellow Cab cigars. There was one cigar company that handled the Yellow Cab cigar in San Antonio, but not this size, and they don't handle them any more; they had the large size, and this was the small size. * * * I most positively identify that property as the property having been stolen from my store on the 14th of February, yes sir."

Rudolph Mendez and Joe Stone, accomplice witnesses, testified that they burglarized Block's store and took therefrom an automobile load of cigars, which they carried to appellant's place of business. They said they made two trips from Block's store to appellant's. They testified, further, that they reached appellant's store shortly after midnight; that appellant came to the door and asked them what they had; that they told him they had some stolen cigars which they desired to sell; that appellant told them to bring the cigars into the house; that they stated they were going to steal him another load; that appellant paid them $30 for the cigars. Appellant offered no testimony.

Bills of exception 6 and 7 present the following occurrence: Over proper objection by appellant, the accomplice witnesses Mendez and Stone were permitted to testify that, approximately a month after they burglarized Block's store and delivered the cigars taken therefrom to appellant, they burglarized the Piggly Wiggly and Handy Andy stores and stole a load of coffee, cigarettes, and hams, which they sold and delivered to appellant at 2 o'clock in the morning. These accomplice witnesses were the only persons who testified concerning the burglary of the Piggly Wiggly and Handy Andy stores and the delivery of the property stolen therefrom to appellant. The opinion is expressed that the testimony was erroneously received.

In cases of receiving stolen property, it is incumbent upon the state to establish, first, that the property was stolen, and, second, that the party charged with receiving such property did so with guilty knowledge. Bismark v. State, 45 Tex. Cr. R. 54, 73 S. W. 965. In establishing the fact that the accused knew when he received the property that it was stolen, the evidence of other similar transactions between the same parties and near the same time is properly receivable. Glasser v. State, 90 Tex. Cr. R. 116, 233 S. W. 969; Mehlman v. State, 92 Tex. Cr. R. 557, 244 S. W. 602, 603. We quote from Wharton's Criminal Evidence, vol. 1, § 35, p. 135, as follows: "In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution, and evidence of collateral offenses is admissible to establish such knowledge."

In Mehlman v. State, supra, proof that the same parties, both prior and subsequent to the delivery of the goods upon which the prosecution was based, sold to the accused other stolen property, was held admissible. We quote the language of Judge Hawkins in the opinion, as follows: "We are cited by appellant to the case of Bismark v. State, 45 Tex. Cr. R. 54, 73 S. W. 965, as supporting his proposition. An examination of the entire record leads us to believe that the Bismark Case should not control in the present instance. The same boys, both prior and subsequent to the sale of Coleman's goods to appellant, had sold him other stolen property. The transactions were so nearly contemporaneous in time with the one under...