Schwartz v. State, 25458

• Decision Date: 14 November 1951
• Docket Number: No. 25458,25458
• Citation: 158 Tex.Crim. 171,246 S.W.2d 174
• Parties: SCHWARTZ v. STATE.
• Court: Texas Court of Criminal Appeals

Page 174

246 S.W.2d 174

158 Tex.Crim. 171

SCHWARTZ v. STATE.

No. 25458.

Court of Criminal Appeals of Texas.

Nov. 14, 1951.

Rehearing Denied Jan. 30, 1952.

Maury Hughes, T. F. Monroe, and W. O. Braecklein, all of Dallas, for appellant.

Henry Wade, Criminal Dist. Atty., Charles S. Potts, Asst. Dist. Atty., and Ray Stokes, Asst. Dist. Atty., all of Dallas, George P. Blackburn, State's Atty., of Austin, for the State.

MORRISON, Judge.

The offense is that of being an accomplice to the crime of robbery; the punishment, ninety-nine years.

One Jarrett and one Bennett, both escapees from an Ohio jail, came to Dallas a few days before February 17, 1950. On that day, after preparations which will be hereinafter shown, they went to the home of Dr. Shortal in that city, gained admittance by the use of firearms, tied up the servants and waited for Mrs. Shortal's return. When she did return, at pistol point she was forced to surrender her diamond rings and then locked in a closet. After leaving the Shortal residence, Jarrett and Bennett went to the pawnshop of appellant and left the diamond rings with him. They received a small amount of money, in comparison to the value of the jewelry, and expected appellant to dispose of the jewelry and compensate them further. Of these facts there seems to have been no controversy.

At the trial of appellant, Jarrett and Bennett both testified for the State and, in addition to the above, told of having entered into a conspiracy with appellant to commit a series of robberies, of having received arms and information as to whom to rob from appellant, and of having in accordance with this conspiracy performed the Shortal robbery and carried to him the fruits thereof for disposal and a division of the proceeds among the three of them.

Appellant denied the conspiracy and claimed that he received the diamonds as an innocent purchaser for value.

We shall attempt to discuss the questions presented by appellant in the order advanced.

Our attention is first directed to appellant's claim that there is no evidence other than the testimony of the two accomplice witnesses which tends to connect him with being an accomplice to the commission of the offense, and that their testimony is not sufficiently corroborated.

Jarrett told of purchasing a pistol from appellant at his pawnshop and returning it the next day because it would not fire. On this occasion, appellant remarked to Jarrett, 'If you had a partner to work with, you might be able to make a good score.' Thereupon, Jarrett introduced Bennett to appellant; and the three of them worked out a division of any spoils they might acquire by virtue of robberies contemplated, wherein appellant was to furnish the name of the party to be robbed, Jarrett and Bennett were to commit the robbery and bring the fruits thereof to appellant for disposal. An equal division of the proceeds was agreed upon.

At this juncture, appellant sent his assistant, a colored boy named Davis, up to the third floor to test the new gun being furnished Jarrett and which was later used in the Shortal robbery. Davis testified in corroboration as to this fact and, further, that at the instance of appellant following the Shortal robbery, he delivered fifty dollars to Jarrett in person and sent a second fifty dollars under a fictitious name to Houston. This was shown to have been received by Bennett. Davis further testified that he saw Jarrett and Bennett in the pawnshop in company with appellant on another occasion prior to the Shortal robbery.

Jarrett testified that on the morning of the robbery, and in preparation therefor, appellant in the presence of Jarrett and Bennett called the Shortal Clinic to ascertain whether Dr. Shortal had left home. This was done so that they would not encounter Dr. Shortal when they went to rob his home.

Miss Kate Graham, the receptionist at Dr. Shortal's Clinic, corroborated Jarrett as to such a telephone call, as will be seen in our discussion of Bill of Exception No. 4.

In addition to the above, we find two telling portions of evidence tending to show appellant's connection with the fruits of the robbery after the same had been committed.

The witness Graham testified that some time following the robbery she received an anonymous telephone call at the Clinic making inquiry as to a reward for the missing diamonds. Immediately thereafter, at the suggestion of the police, she called appellant at his place of business and positively identified his voice as being the one that had made the reward inquiry.

We further find the testimony of the witness DeWitt, an insurance adjuster from whom the appellant made surreptitious inquiry concerning the reward for the return of the Shortal diamonds following the robbery and their delivery to him for disposal by Jarrett and Bennett.

We feel that the recorded telephone conversations between Jarrett and appellant hereinafter discussed under Bill of Exception No. 1 corroborate Jarrett's and Bennett's version of the transaction and disprove appellant's defense.

Bill of Exception No. 1 complains of the playing before the jury of such records of conversations between the witness Jarrett and the appellant. These records were made in the Sheriff's office at the suggestion of the District Attorney for the purpose of securing evidence against appellant. Jarrett was then a prisoner and cooperated with the officers in making out the State's case. The medium of their communication was the telephone, Jarrett being in the Sheriff's office and appellant being at his pawnshop.

Illustrative thereof is an answer made by Schwartz to questions by Jarrett concerning securing the services of a lawyer and how much information the police had about the guns used in the robbery, when he said, '* * * you sit in the boat and we will get along better. There's no use of ten people drowning when one can drown and one can help the other.'

Appellant leveled nine objections to the evidence, of which we will discuss those urged in his brief.

Appellant sought to invoke the terms of Section 605 of Title 47, U.S.Code Annotated; Telegraphs, Telephones and Radiotelegraphs, commonly referred to as the Federal Communications Act, by claiming that he did not consent to the making of the recordings or to their introduction in evidence and cities us opinions in several cases arising in Federal Courts.

Without holding this evidence to have been obtained in violation of Section 605, we address ourselves rather to the question of the applicability of a Federal procedural statute to a trial in a State Court.

Prior to 1929, the statute, now Article 727a, Vernon's Code of Criminal Procedure, read, 'No evidence obtained by an officer or other person in violation of any provision of the constitution or laws of the State of Texas, or of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.'

It now reads, 'No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.'

In 1930, we said in Montalbano v. State, 116 Tex.Cr.R. 242, 34 S.W.2d 1100, 1101: '* * * article 727a, C.C.P., was amended so as to no longer require rejection of evidence obtained in violation of laws of the United States. There is no claim that the evidence was obtained in violation of any law of this state.'

This evidence was not obtained in violation of the State or Federal Constitution or the statutes of Texas and was here admissible as against this objection.

Appellant next complains that the phonographic records were secondary evidence and that Jarrett himself was the source of the best evidence. We are cited no authorities. It appears to us that the complaint is not well taken.

Bill of Exception No. 4 complains that the witness Graham was permitted to testify as to having received an anonymous telephone call.

This testimony was in corroboration of the accomplice Jarrett, who had, prior to the receipt of the Graham evidence, testified that he was present when appellant called her on the telephone and told these details of the conversation, which she corroborated:

1. That the call was made in the morning of the day of the robbery.

2. That it was made to Dr. Shortal's Clinic.

3. That the person calling inquired about the whereabouts of Dr. Shortal and told of an alleged automobile accident between Mrs. Shortal's car and that of the caller.

4. The refusal...