Schepps v. State, 40895

• Decision Date: 24 January 1968
• Docket Number: No. 40895,40895
• Citation: 432 S.W.2d 926
• Court: Texas Court of Criminal Appeals
• Parties: Mair J. SCHEPPS, Appellant, v. The STATE of Texas, Appellee.

Page 926

432 S.W.2d 926

Mair J. SCHEPPS, Appellant, v. The STATE of Texas, Appellee.

No. 40895.

Court of Criminal Appeals of Texas.

Jan. 24, 1968.

On Rehearing May 15, 1968.

Rehearing Denied Oct. 9, 1968.

Procter & Jones by, Les Procter, James H. Granger, Austin, for appellant.

Thomas D. Blackwell, Dist. Atty., Phillip A. Nelson, Jr., Asst. Dist. Atty., and Leon B. Douglas, State's Atty., Austin, for the State.

OPINION

MORRISON, Judge.

The offense is being an accomplice to certain named principals in the commission of the offense of printing and making a counterfeit cigarette tax stamp; the punishment, seven years in the Department of Corrections.

Appellant's first ground of error is that the court erred in overruling his exceptions to the fourth count of the indictment under which appellant was convicted. The indictment was drawn under Chapter 7 of Title 122A, V.A.T.S., 'Cigarette Tex Law'. Article 7.38 of said chapter denounced the offense, to which appellant was charged as being an accomplice. It is appellant's contention that the definition of a counterfeit stamp which is set forth in Article 7.01 of said chapter should have been incorporated in the indictment.

He relies upon cases such as McNelly v. State, Tex.Cr.App., 152 S.W.2d 771, in which this Court held that an essential element of the offense of enticing a minor away from a parent or guardian or one standing in stead of a parent or guardian was that the person from whom the child was enticed was either a parent or guardian or one standing in stead of such parent or guardian.

Another authority upon which he relies is Hillin v. State, 123 Tex.Cr.R. 22, 57 S.W.2d 843, which held that an indictment which merely charged an accused with 'unlawfully obstructing a public road' was not sufficient since there were several different ways in which such act might be accomplished, covered by different statutes, and that the manner in which the obstruction was effected was an essential element of the crime sought to be charged.

In Calcoat v. State, 37 Tex.Cr.R. 245, 39 S.W. 364, where an accused was charged with illegal voting, this Court held that the allegation that he was not a qualified voter at the election precinct at which the voting took place was a necessary ingredient of the offense charged.

We find ourselves in accord with such holdings, but conclude that the indictment in this case is sufficient to apprise the accused of the nature of the offense with which he is charged, which is all that is required under our holdings in Crawford v. State, 170 Tex.Cr.R. 393, 341 S.W.2d 454; Rushing v. State, 161 Tex.Cr.R. 334, 277 S.W.2d 104; Cortez v. State, Tex.Cr.App., 275 S.W.2d 123; and cases there cited.

We further observe that the indictment charges the accused with being an accomplice to the making and printing of a Cigarette tax stamp. The misdemeanor offense denounced by Article 1113, V.A.P.C. (redrafted as Sec. 17.28, Texas Bus. & C., effective September 1, 1967) makes no mention of cigarette tax stamps. If ever applicable to cigarette tax stamps, Article 1113, supra, (Sec. 17.28, supra) certainly is no longer applicable since the enactment of Article 7.28 of Title 122A, supra. It therefore follows that since the indictment included the term 'cigarette tax stamp' the offense charged was a felony and not the misdemeanor denounced by Article 1113, supra.

We will reserve discussion of appellant's second ground of error until a future point in this opinion.

His third ground is that the court erred in failing to require the State to elect upon which offense it would rely for a conviction. It should be remembered that the indictment charged appellant with being an accomplice to the making and printing of A counterfeit cigarette tax stamp, and the proof necessarily involved the showing that thousands of stamps were printed. There was no practical way by which the State could isolate one package of cigarettes and base its case thereon. In Long v. State, 258 S.W.2d 818, this Court said:

'We think it would have been useless, as well as idle, to say that the State would have to elect as to which bottle out of the 20 lugs of whiskey found there that appellant intended to sell.'

We overrule appellant's contention that the State should have been required to elect.

Appellant's reliance upon Bates v. State, 165 Tex.Cr.R. 140, 305 S.W.2d 366, and O'Clair v. State, Tex.Cr.App., 364 S.W.2d 375, is unfounded because in each case separate and distinct acts of intercourse were shown to have occurred at various times and places.

Appellant's fourth and fifth grounds of error grow out of the court's refusal to 'excise from' the confessions of the alleged principals any reference to him. Reliance is had upon certain language contained in the opinions of this Court in Browney v. State, 128 Tex.Cr.R. 81, 79 S.W.2d 311. Appellant neglects to note that this Court discussed Browney, supra, at some length in Louvier v. State, 165 Tex.Cr.R. 167, 305 S.W.2d 574 (cert. den., 356 U.S. 923, 78 S.Ct. 707, 2 L.Ed.2d 717), wherein we held that Browney v. State, supra, was not authority which will support the appellant's contention that the admission of the principal's confession showing the guilt of the accomplice constituted reversible error. This is not to be construed as holding that the confession of a principal which recited an extraneous offense would be admissible against either the principal or the accomplice.

In the case at bar the court's charge properly limited the jury's consideration of the principal's confession in substantially the same terms as set forth in our opinion in Louvier v. State, supra, which is the last expression of this Court on this question. We find no merit in appellant's fourth and fifth grounds of error.

His sixth ground of error is that the court erred in failing to grant a mistrial when the witness Grace testified that he had briefly observed a counterfeit cigarette tax stamp $29244 on a package of cigarettes in appellant's possession on September 8, 1964, prior to the discovery of the counterfeiting machine at another location on October 29, 1964. The court sustained the objection and instructed the jury not to consider the same. After he had reexamined the witness' qualification as an expert in the absence of the jury, the court then asked the jury to pay particular attention to the instruction he was about to give them, and again instructed them that they were not to consider the witness' conclusion that the stamp which he had observed only briefly was a counterfeit.

Clearly the opinion of the majority in Craig v. State, 169 Tex.Cr.R. 23, 331 S.W.2d 925, relied upon by the appellant, is not authority calling for a reversal of this conviction. In that case the State was permitted to show that the accused was apprehensive about a charge of murder then pending against him, and also feared that he would be investigated and prosecuted for another murder.

What we have here is a witness expressing an opinion which the court tells the jury not to consider, and after a full investigation as to the witness' competency to express such an opinion from his cursory examination in the absence of the jury, the court again instructs the jury in emphatic terms not to consider the opinion testimony of the witness Grace. It will be presumed that the jury heeded the court's instructions and did not consider the testimony which he told them was inadmissible. Moore v. State, 7 Tex.App. 14, 19; 13A Texas Digest, Criminal Law k1169(5).

His seventh ground of error is his contention that the State failed to connect the random purchases of cigarettes throughout the City of Houston which bore counterfeit tax stamps with appellant. Each package so purchased was submitted to the witness Mitchell, the tax stamp analyst for the Pitney-Bowes tax stamp manufacturing company of Stamford, Connecticut. He examined each of the randomly purchased cigarette packages and testified that they were not stamped with the authentic stamp made by a Pitney-Bowes stamping machine. Four employees of the Comptroller Department kept certain locations under surveillance for a number of days and observed two supplied such locations with cigarettes. They later bought cigarettes bearing counterfeit stamps from such locations. It was shown by other witnesses that the persons who delivered cigarettes to the said locations secured all of their cigarettes from the House of Tobacco, of which the appellant was the dawn-to-dusk operating president. This, we conclude sufficiently connected the random purchases with appellant.

His eighth ground of error is that the court failed to adequately charge the jury not to consider evidence relating solely to the abandoned counts in the indictment which charged the appellant as a principal. We quote in part from appellant's objections to the court's charge:

'In this connection the defendant says that the Court's instruction on page one of the Charge wherein the court says '* * * you are instructed not to consider the first, second and third counts in the indictment or any evidence or testimony, if any, given solely on said counts for any purpose whatsoever,' is not a sufficient instruction to the jury to tell the jury what evidence they may not consider in their deliberations on Count Four of the indictment.'

This Court said in Morris v. State, 96 Tex.Cr.R. 605, 258 S.W. 1065, at 1068:

'In the case before us the exception stressed in the motion is stated as follows:

'That said charge should limit the purpose of the testimony offered relative to the alleged sales and various other offenses attempted to be proved and proved in this cause, and the charge nowhere limits said proof, or shows its purpose,'

'This exception is too general. It points out no evidence which the court fails to limit in its charge. How could the trial court then, or how can this court now, know what particular evidence appellant embraced in this complaint?'

Appellant's eighth...