Smith v. State

• Decision Date: 19 February 1975
• Docket Number: No. 49607,49607
• Citation: 518 S.W.2d 823
• Parties: Henry Morgan SMITH, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 823

518 S.W.2d 823

Henry Morgan SMITH, Appellant, v. The STATE of Texas, Appellee.

No. 49607.

Court of Criminal Appeals of Texas.

Feb. 19, 1975.

Ted Hartley and Lee Griffin, Clovis, N.M., for appellant.

Jack Young, Dist. Atty., Muleshoe, Jim D. Vollers, State's Atty., and David S. McAngus, Asst. State's Atty., Austin, for the State.

OPINION

DALLY, Commissioner.

This is an appeal from a conviction for felony theft; the punishment assessed was imprisonment for four years. The appellant insists that the evidence merely shows he possessed the stolen 'friction saw' and that it does not support his conviction for the theft of that saw.

Evidence that a defendant had the personal, unexplained possession of property recently stolen is sufficient to raise a presumption or inference of guilt and to sustain his conviction for the theft of that property. See, e.g., Barnes v. United States, 412 U.S. 837, 93 S.Ct. 2357, 37 L.Ed.2d 380 (1973); MacKenna v. State, 164 Tex.Cr.R. 623, 301 S.W.2d 657 (1957); Bowers v. State, 414 S.W.2d 929 (Tex.Cr.App.1967); English v. State, 441 S.W.2d 195 (Tex.Cr.App.1969); Sirabella v. State, 492 S.W.2d 571 (Tex.Cr.App.1973).

Evidence that a defendant had the personal possession of property recently stolen is not sufficient to sustain his conviction for the theft of that property if when he was first directly or circumstantially called upon to explain his possession of the property he made a reasonable explanation which is not refuted, showing his honest acquisition of the property. See Davidson v. State, 125 Tex.Cr.R. 518, 69 S.W.2d 97 (1934); 5 Branch's P.C.2d ed. 100, Sec. 2651. Cf. McCutcheon v. State, 140 Tex.Cr.R. 74, 143 S.W.2d 611 (1940).

The appellant says the saw found in his possession was not recently stolen and that he made an explanation of his possession of the saw which would overcome the presumption or inference of guilt arising from his possession of the stolen saw.

On March 10th the appellant was admittedly in possession of a 'friction saw' which had been stolen on February 11th, twenty-eight days before. The saw was 'four or five feet tall' and weighed 'about three hundred pounds.' It would have been difficult if not impossible to transport te saw inside of an automobile. When the sheriff of Parmer County first questioned the appellant on March 11th, he said the appellant told him he had found the saw on the edge of the highway between the communities of Bovina and Friona and that he transported the saw in his automobile. The sheriff was also told by the appellant that the burglary and theft committed when the saw was taken were not his 'job.'

Whether stolen property was recently stolen is a question of fact to be determined by the circumstances. 55 Tex.Jur.2d 486, Theft, Sec. 217. Here, twenty-eight days had elapsed between the time the saw was stolen and the time it was found in the possession of the appellant. Numerous cases have held that it was a fact question whether stolen property was recently stolen when over twenty-eight days had elapsed between the theft of the property and the arrest of the party found in the possession of the property. See Wall v. State, 167 Tex.Cr.R. 634, 322 S.W.2d 641 (1959) (approximately two months); Allen v. State, 97 Tex.Cr.R. 467, 262 S.W. 502 (1924) (approximately two months); Florez v. State, 26 Tex.App. 477, 9 S.W. 772 (1888) (approximately eleven months). See also United States v. Underhill, 483 F.2d 36 (5th Cir. 1973) (more than thirty days).

The appellant in this case waived trial by jury and was tried before the court. The court was the trier of the facts, and its finding that the appellant was guilty was an implicit finding that the stolen property was recently stolen. We will not hold as a matter of law that possession of property twenty-eight days after it was stolen is too remote to raise the presumption or inference of guilt, and we see no reason to disturb the trial court's finding.

The other question concerning the appellant's explanation of his acquisition and possession of the saw is more difficult. The state argues that it is not relying solely upon the appellant's possession of the saw but that there is other evidence to show the appellant's guilt. The state argues that additional evidence of the appellant's guilt is found in the testimony of the sheriff of Parmer County that the boot tracks and those of semi-mud grip tires which he saw at the place where the saw was stolen were identical to those found on the property of appellant twenty-nine days later. We give this testimony little or no probative value when there were no casts made of the tracks for comparison, and nothing was unique about the tracks which were found--such tracks being common in that area of the state. Cf. Resendez v. State, 495 S.W.2d 934 (Tex.Cr.App.1973); Chambers v. State, 508 S.W.2d 348 (Tex.Cr.App.1974). Neither are we inclined to give weight to the state's claim that the appellant made an oral confession of the theft of the saw to the sheriff of Curry County, New Mexico. As we read that sheriff's testimony, he came to Amarillo and questioned ...