Rutherford v. State

• Decision Date: 05 March 1919
• Docket Number: (No. 5312.)
• Parties: RUTHERFORD v. STATE.
• Court: Texas Court of Criminal Appeals

Page 745

209 S.W. 745

RUTHERFORD v. STATE.

(No. 5312.)

Court of Criminal Appeals of Texas.

March 5, 1919.

Appeal from District Court, Marion County; J. A. Ward, Judge.

Ina Rutherford was convicted of receiving and concealing stolen property, and she appeals. Reversed and remanded.

Schluter & Singleton, of Jefferson, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

LATTIMORE, J.

In this case appellant was tried in the district court of Marion county for the offense of receiving and concealing stolen property, and upon conviction was punished by confinement in the state penitentiary for two years.

It appears undisputed from the evidence that three negro men took a trunk belonging to a Mrs. Kirkland in such manner as that the taking constituted theft. After breaking open said trunk, they divided its contents into "three piles," and each took one pile. The names of the negro men were Roy Calvin, Buddie Jackson, and one Fox. Fox seems never to have been apprehended, and the record does not disclose what became of his portion of the loot. Jackson was arrested, as was also Calvin, and both seem to have pleaded guilty. There is nothing in the record to show what was in the "pile" of either Jackson or Fox, nor is it shown what part of the property was recovered by the owner. The property was taken at night, and about 7 o'clock the next morning Calvin came to the place where appellant, a negro woman whose husband was dead, lived with her four children and her father. Calvin brought with him a bundle wrapped in a quilt, which he asked appellant's permission to leave in a certain box, in which he placed the bundle wrapped up in the quilt. Later in the day the sheriff came to the house, looked into the box, saw the quilt, and asked appellant about it, and she said it was hers; a fact, however, which she denied. After the sheriff departed Buddie Jackson, one of the original takers, who lived next door to appellant, was at her house, and she told him what had occurred, and of the fact that Calvin had brought this bundle to her house, and asked him if he supposed it was part of the things that were taken. He seems to have looked at it and told her that he expected it was, and that she had better destroy it, and also advised her to burn it, and the record discloses that shortly thereafter the property was carried into the yard and burned, but just exactly by whom there is some contradiction, which is immaterial. The only article which was not destroyed appeared to be the quilt in which the other things were brought to appellant's home, and this was later identified by Mr. Kirkland, the husband of the owner of the trunk. Appellant was convicted of a felony, and in order to sustain this verdict the state must have shown beyond a reasonable doubt, not only that she received and concealed stolen property, but that the aggregate value of such property was over $50.

We have no doubt but that one who receives property without knowing at the time that it was stolen, but who thereafter comes into possession of such knowledge, and after becoming aware of such fact conceals or destroys the property with intent to aid the thief to escape punishment or detection, or with intent to deprive the owner of the same, would be guilty of the offense herein charged; but, as stated above, in order to constitute such offense a felony it must be shown not only that the property lost was of sufficient value, but that which actually came into the possession of the party accused was of sufficient value to make it a felony.

In this case the state used as witnesses Roy Calvin, Buddie Jackson, two of the original takers of the property, Genevieve Jackson, the wife of Buddie Jackson, and one Elijah James, who was a boarder in appellant's house, and seems to have aided in disposing of the property. Roy Calvin testified as to what property he carried to the appellant's home, describing it on both direct and cross examination. Genevieve Jackson, the wife of Buddie Jackson, also testified to having seen the property while in appellant's house, and she described the same also, and a careful comparison of their testimony shows that a great deal of the property mentioned in the indictment was never...