Sparks v. State

• Decision Date: 21 December 1927
• Docket Number: (No. 11149.)
• Citation: 300 S.W. 938
• Parties: SPARKS v. STATE.
• Court: Texas Court of Criminal Appeals

300 S.W. 938

SPARKS v. STATE.

(No. 11149.)

Court of Criminal Appeals of Texas.

December 21, 1927.

Appeal from District Court, Hall County; R. L. Templeton, Judge.

J. B. Sparks was convicted of receiving and concealing stolen property of the value of more than $50, and he appeals. Reversed and remanded.

R. H. Beville, of Clarendon, for appellant.

A. A. Dawson, State's Atty., of Austin, for the State.

MARTIN, J.

Offense, receiving and concealing stolen property of the value of more then $50; penalty, two years in the penitentiary.

Appellant, J. B. Sparks, and Albert Wasson were jointly indicted in two counts; the first being for the theft of certain personal property consisting of various articles of merchandise alleged to belong to one Pete Gabbert, and the second count charging the reception of this same property from some person to the grand jurors unknown, knowing the same to have been stolen. He was convicted under the second count.

December 27, 1926, and prior thereto, witness Pete Gabbert was in the drug business in the town of Lelia Lake, and appellant, J. B. Sparks, referred to by witnesses as Dr. Sparks, had an office in Gabbert's drug store until a few days before the drug store burned, which appears to have been on December 27, 1926. It seems that Dr. Sparks owned part of the stock in said drug store, and until the time he moved out had a key to same and pratically had charge of the business. In January, 1927, appellant's premises were searched, and various articles of merchandise alleged to have come from the stock owned by witness Gabbert were found in his possession.

The sufficiency of the evidence is vigorously assailed. Witness Gabbert appeared either unable or unwilling to identify the goods found in possession of appellant. The difficulty the state had in making out its case is illustrated by the following quotation from Gabbert's testimony:

"I don't know whether any of this stuff was taken out of my stock of merchandise. I don't know that this is the same stuff that came out of my stock of goods. All that I can identify would be what my name is on, and that could have been shipped to the store by authority of Dr. Sparks or his daughter, who had authority to buy and sell in my store. Sometimes part of the goods would be his; some of it his, some of it mine. In fact he owned the stock of drugs, and, if he used the stuff I had, he always paid me. I suppose Dr. Sparks owned a lot of stuff here that I could not identify. At the time he moved a truckload of stuff away from my store a few days before Christmas, he moved some stuff similar to this. He had a little of nearly everything. Dr. Sparks really had charge of the store."

The clearest incriminating fact against appellant we have found in the record arises from the testimony of Troy Rackley. This witness left in the store the afternoon before it was burned that night a hand bag which had in it three pair of trousers, a pair of slippers, part of a toilet set, and some shirts. The hand bag and part of these articles were subsequently found in possession of appellant and positively identified by the witness; however, they were not named in the indictment. In view of the disposition we make of this case, we will not pass on the sufficiency of the evidence.

There are forty-seven bills of exception found in the record. Some of these manifest error. Other errors appear in the record which were not made the subject of exception in the trial court. We deem it best to discuss generally and briefly certain law questions arising from this record, without a tedious discussion of all of appellant's bills.

If appellant and his codefendant jointly stole this property, neither could be guilty of receiving it from the other. Harper v. State, 88 Tex. Cr. R. 354, 227 S. W. 190. See, also, Bloch v. State, 81 Tex. Cr. R. 1, 193 S. W. 307; Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58. Nor could the appellant be guilty of both offenses. If he stole the property, he could not receive it from...