Punchard v. State

• Decision Date: 31 May 1933
• Docket Number: No. 16012.,16012.
• Parties: PUNCHARD v. STATE.
• Court: Texas Court of Criminal Appeals

61 S.W.2d 495

PUNCHARD v. STATE.

No. 16012.

Court of Criminal Appeals of Texas.

May 31, 1933.

Commissioners' Decision.

Appeal from District Court, McCulloch County; E. J. Miller, Judge.

Skinner Punchard was convicted of theft, and he appeals.

Reversed and remanded.

I. J. Burns and Newman & McCollum, all of Brady, for appellant.

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

CALHOUN, Judge.

The offense, theft; the punishment two years in the penitentiary.

The state's evidence shows that one G. C. Kirk was in the men's furnishing business in the town of Brady and on or about July 9, 1932, he found upon investigation of his store that there were some ten or twelve suits of clothing and ten pairs of shoes taken therefrom. He testified that the cash market value of the suits was about $25 apiece and of the shoes about five or eight dollars a pair and he did not gave any one permission to take the property. That a day or two after he had missed the clothing he was shown a sack which contained two suits of clothing with an extra pair of pants and they were stolen out of his place.

Love Kimbrough, the sheriff of McCulloch county, testified that he saw the appellant, Skinner Punchard, some four or five miles east of the town of Brady. The appellant was sitting down at the time under a railroad culvert and the appellant ran some two hundred yards when he came up and he caught him and found a sack under the culvert which contained two new suits of clothes and two used pair of pants, three shirts, and a suit of underwear; that one Joe Perry also ran out from under the culvert and got away but was later taken into custody. He further testified that at the time he arrested the appellant, the appellant told him that Joe Perry had the sack and he just put his clothes in said sack and that the two new suits of clothes were not his and the two suits of clothes identified by the witness Kirk were in the sack belonging to Joe Perry when he put his clothes in there. The witness further testified that he only found two new suits of clothing in said sack and all the rest were old clothes.

The appellant testified in his own behalf and stated that he did not have anything to do with the taking of any shoes or suits of clothes from Mr. Kirk's store; that he did not go into the store and that Joe Perry had come by his house and asked him if he would go to Brownwood with him; that he had some of his clothes in a paper sack and at the time the said Joe Perry had the sack with him and he told the appellant to put his bundle in the sack, which he did, so that it would make it easier for them to get on the train. That at the time he put his clothes in there he did not know that the said Joe Perry had any stolen property in the sack. Appellant also offered evidence seeking to establish an alibi.

By bill of exception appellant complains of the action of the trial court in overruling his plea of former jeopardy. It seems from the record that the appellant filed a special plea in bar, pleading a former acquittal for the same offense and setting up that an indictment had theretofore been returned against him charging this defendant in two counts, one with having burglarized a house under the control of one G. C. Kirk, and in the other count charging this appellant with the unlawful and fraudulent receiving from one Joe Perry certain corporeal personal property belonging to the said G. C. Kirk of the aggregate value of $460; that this indictment was returned against him on or about the 4th day of October, 1932. That he was tried under said indictment and had been acquitted. He further alleges that the indictment in this case under which he was called to plead was returned against him on the 26th day of October, 1932, which said indictment charged him with the theft of the same personal property which the former indictment charged him with having received and concealed from the said Joe Perry, and that the act charged in the second indictment was the same identical act and transaction.

In connection with appellant's plea of former jeopardy, the record shows that it was agreed by the district attorney and the appellant that the appellant was indicted as alleged by the appellant in his plea and that the appellant had been tried and acquitted under said indictment on the charge of burglary and also the charge of receiving and concealing stolen property knowing it to have been stolen; that afterwards the appellant was indicted for the offense of theft, that being the cause now upon trial. That the property alleged to have been stolen was the identical property alleged to have been received and concealed and that the evidence offered upon this trial would be the same evidence offered in the trial of this defendant under the former indictment. The court overruled and refused said plea and refused to submit the matters contained therein as an issue before the jury, to all...