Robinson v. State, 21492.

• Decision Date: 19 March 1941
• Docket Number: No. 21492.,21492.
• Citation: 148 S.W.2d 1115
• Parties: ROBINSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 1115

148 S.W.2d 1115

ROBINSON v. STATE.

No. 21492.

Court of Criminal Appeals of Texas.

March 19, 1941.

Appeal from District Court, Limestone County; H. F. Kirby, Judge.

Country Tom Robinson was convicted for knowingly receiving and concealing stolen property, and he appeals.

Reversed and cause remanded.

Reed & Cannon, of Groesbeck, and H. S. Beard, of Waco, for appellant.

L. L. Geren, Co. Atty., J. B. Engledow and Clarence Ferguson, Asst. Co. Attys., and L. W. Shepperd, Sp. Prosecutor, all of Groesbeck, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

GRAVES, Judge.

Appellant was convicted for knowingly receiving and concealing stolen property, and the jury assessed his penalty at two years in the penitentiary.

The State's main proof consisted of the testimony of confessed accomplices.

It was shown that the warehouse of the Magnolia Petroleum Co. in Groesbeck was burglarized on the night of July 17, 1940, and a quantity of lubricating oil and grease taken therefrom. The two accomplices both swore that they took this quantity of oil and grease to appellant's home in the nighttime, and he bought same from them, paying him therefor a price proven to be much less than their fair value. The State then showed by a negro, Ollie Busby, that at about three o'clock in the morning, sometime about the middle of July of that year, appellant came to where Busby was living on appellant's place and awakened Busby, and told him that he was going to "stash" some oil. From the context we infer that the word "stash" means to hide, conceal or dispose of this oil. Busby demurred but finally went with appellant and hid this oil that was at such time in appellant's pickup truck. After hiding this oil, which was in cans, contained in cases, the two came back to appellant's home and emptied some of these small cans into a large five gallon can, and afterwards the negro Busby, under appellant's instructions, burned these small cans in appellant's hog pasture. Later on the officers came to this negro's house and he took them and showed them where the oil had been hidden, and some of these cases of oil were recovered and brought into court and identified as a portion of the stolen oil. There were also found some burned cans where the negro said they were located, and the officers also found some oil in a five-gallon can near appellant's home. Busby's wife and mother-in-law also testified as to appellant's three o'clock in the morning trip to Busby's house, and one of them testified that appellant told Busby that "he wanted him to go with him and help him to put away some stuff," and that appellant threatened to kill Busby if he did not go with him.

Appellant did not take the stand, and offered only one witness, his wife, who testified only to certain matters in an attempted impeachment of Busby's wife and mother-in-law. She did leave an inference, however, that appellant had some land rented from a Mr. Simmons, and upon Mr. Simmons' land was found a portion of the stolen oil.

Appellant complains because of an alleged variance between the allegation and the proof in that the stolen property was alleged to have been that of E. M. Jones whereas he says that such property was that of J. T. Jones, and that the proof failed to correspond to the allegation. The testimony shows that the property alleged to have been stolen was under the care, custody and control of Mrs. Esther Maye Jones, and that she and her husband looked after such property. That her husband was subject to an affliction which at times rendered him unconscious, and that this property, while belonging to the Magnolia Petroleum Co., was in her care, custody and control. We think it is perfectly plain that she was the special owner, and that her name and initials were E. M. Jones. We see no failure in correspondence of the allegation and proof. See Branch's P.C., p. 1316, § 2432.

Appellant again complains because it is claimed that the State failed to make out a case of receiving a sufficient amount of stolen property to show a felony. It is shown by the proof that the negro Busby took the officers to places where they recovered nine cases of oil and two buckets of grease, but only six of these cases bore any identifying marks thereon from which the witnesses were able to say that these cases came out of this Magnolia warehouse at the time of the burglary. It was shown that at the same time that these six cases of oil were stolen there were also other cases of oil stolen, the whole being valued at more than $50, and that all such stolen stuff was delivered to appellant near midnight of July 17, 1940. We think that such facts were sufficient for the jury to say that the amount received by appellant was either the whole of the stolen property or none of it. They may infer the stealing of the whole from the possession of a part. Branch's P.C., p. 1332, § 2463, and cases cited. It is also worthy of note that the accomplices state that they delivered to appellant seventeen cases of oil, which would amount in value to more than $50.

Appellant complains relative to the court's charge on accomplice testimony. We think the court should have responded to this complaint. We suggest, in the event of another trial, that the court give in charge to the jury substantially the charge set forth in Brown v. State, 57 Tex.Cr.R. 570, 124 S.W. 101, which is quoted in Quinn v. State, 136 Tex.Cr.R. 131, 123 S.W.2d 890.

It is here noted that in order to connect this appellant under this indictment it is necessary to show guilty knowledge. True, this endeavor comes from accomplices, but that one fact does not render this proof inadmissible. Mr. Wharton lays down the exceptions to the general rule that forbids the introduction of crimes of a like character, and among these exceptions we find (3) to prove scienter or guilty knowledge. In Section 35, Vol. 1, on Criminal Evidence, he says: "Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter or guilty knowledge, even though the reception of such evidence might establish a different and independent offense. 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."

We think the Kaufman case, Kaufman v. State, 70 Tex.Cr.R. 438, 159 S.W. 58, 60, from which the above quotation is taken, is in point on this proposition. We also think the Henderson case, Henderson v. State, 76 Tex.Cr.R. 66, 172 S.W. 793, in point. In that case the State's witness claimed that appellant told witness...