Spivey v. State

• Decision Date: 13 May 1942
• Docket Number: No. 22098.,22098.
• Citation: 164 S.W.2d 668
• Parties: SPIVEY v. STATE.
• Court: Texas Court of Criminal Appeals

164 S.W.2d 668

SPIVEY v. STATE.

No. 22098.

Court of Criminal Appeals of Texas.

May 13, 1942.

Rehearing Denied June 26, 1942.

Application for Leave to File Second Motion for Rehearing Denied October 7, 1942.

COPYRIGHT MATERIAL OMITTED

Appeal from Criminal District Court, Harris County; Frank Williford, Jr., Judge.

Antone Spivey was convicted for the theft of cigarettes of the value of more than $50, and he appeals.

Affirmed.

Charles Murphy, of Houston, for appellant.

Dan W. Jackson, Crim. Dist. Atty., and Cam Kay, and O'Brien Stevens, Assistant Crim. Dist. Attys., all of Houston, and Spurgeon E. Bell, State's Atty., of Austin, for the State.

HAWKINS, Presiding Judge.

Conviction is for theft of cigarettes of the value of more than $50 from M. M. Stevenson, the date of the offense being alleged as on or about June 15, 1939. Punishment was assessed at 2 years in the penitentiary.

(1) Appellant filed a plea of former jeopardy which was overruled by the trial court without hearing evidence thereon. This action is urged as erroneous and is complained of in bills of exception Nos. 1 and 20. If the plea of former jeopardy was good on its face if supported by proper evidence, the action of the trial court in overruling it without hearing evidence in support of the plea would be error. See Hipple v. State, 80 Tex.Cr.R. 531, 191 S.W. 1150, and Dunn v. State, 92 Tex.Cr.R. 126, 242 S.W. 1049. On the other hand, if conceding the matters set up in the plea to be true, they present no legal issue of jeopardy, the court commits no error in refusing to hear evidence thereon and submit such issue to the jury. Cloninger v. State, 101 Tex.Cr.R. 1, 274 S.W. 596.

Appellant's plea of former jeopardy sets out that in a former indictment he was charged with receiving and concealing the cigarettes in question; that he entered his plea of guilty thereto and was convicted on said plea and given two years in the penitentiary; that he appealed from said judgment of conviction, and the cause was reversed and remanded; that the indictment was dismissed by the State after which this present indictment was returned against him which in one count charged him with theft of the cigarettes and in another count with receiving and concealing them. Appellant seems to base his plea of jeopardy on the proposition that when the State first indicted him for receiving and concealing only it was a carving by the State and that when issue was once joined upon a trial under that indictment it was an acquittal of all other offenses which might have been charged in the former indictment. The proposition just stated is not a sound principle of law. When appellant sought and obtained a reversal of the judgment of conviction for receiving claimed even against that charge by reason and concealing, no jeopardy could be of the trial which resulted in the conviction, because the conviction was set aside on appellant's request. See 12 Tex.Jur., p. 552, Sec. 236, and the many cases cited thereunder. But in the present instance the trial court did not submit the case to the jury on the count charging receiving and concealing but upon theft alone. The latter offense was not charged in the former indictment, hence no jeopardy could have attached because of a prior trial where theft was not charged. The trial court committed no error in disposing of the plea without hearing evidence thereon because the facts alleged in the plea presented no legal issue of jeopardy even though true.

(2) It is appellant's contention that the evidence does not support his conviction as a principal in the offense of theft. This makes it desirable to concisely set out the evidence in order to make understandable the legal questions involved.

Stanley Mosely was a porter at the Walgreen Drug Store in Houston, of which M. M. Stevenson was manager. Mr. Stevenson testified that on June 15, 1939, a case of Chesterfield cigarettes was taken from the store. A case contained 50 cartons. He recovered 15 cartons which were identified by the numbers on the State Tax Stamp. The other 35 cartons were not recovered. Mosely testified that he could get the key to the stock room where the cases of cigarettes were kept by asking the manager for it; that he had an arrangement with appellant that he would steal the cigarettes from the drug store, and sell them to appellant at 50¢ per carton; that appellant would send a taxi driver to the store and he (Mosely) would take the cigarettes from the stock room, place them in the taxi and the driver would deliver them to appellant; that appellant sent a driver by the name of Thomas to get the cigarettes; and that appellant paid Thomas for the hauling of them; that on June 15, 1939, witness took a case of Chesterfield cigarettes from the store and delivered them to Thomas who was waiting for them in his taxi. At one place in his evidence Mosely said: "I was to get my money after the cigarettes were sold. Spivey was to sell them first before I got my money — he was to sell them and get his money and then I expected to get my money." In other parts of his testimony it would appear that Mosely would go to appellant's house a few days after cigarettes were delivered to him and demand pay for them regardless of whether or not appellant had sold them. For instance, witness says: "My plan was to steal the cigarettes from Walgreen and sell them to Spivey for fifty cents a carton." Witness claimed that appellant first mentioned about witness stealing the cigarettes and that the suggestion did not first come from witness.

The State introduced the confession of appellant, the material parts of which are as follows: "* * * Just before Christmas 1938, I had a conversation with and made arrangements with Stanley Mosely, that I would send a Taxi to Walgreen Drug Store, 1023 Main Street, to pick up a package. The first time Stanley Mosely called for a taxi I sent a taxi driven by James C. Thomas, and he returned to 2309 Gray Avenue with a case of cigarettes, I do not remember the brand. I paid Thomas a dollar ($1.00) for making this trip. About two days later Mosely came to my house and I paid him Twenty-Dollars ($20.00) for these cigarettes. I sold these cigarettes to different people, a carton or two at a time. Along about the month of March 1939, Stanley Mosely called me again and told me to send a taxi to Lamar & Main Streets, and this time the same taxi driver came back with another case of cigarettes, Camel brand, the case had been broken up and was four cartons short. We split the difference and I paid him $19.00 for this case of cigarettes, and I paid the taxi driver a Dollar ($1.00) for making this trip. And on last Thursday, June 15, 1939, Mosely called me again and told me to send a taxi to this same address, I sent the same taxi driver and he came back with a case of Chesterfield Cigarettes, and I paid Mosely Twenty Dollars ($20.00) for them. The Chesterfield cigarettes that I got from Mosely on June 15, 1939 were some of the cigarettes I had in my place today when arrested by officers. The 15 cartons of cigarettes that I sold Thomas Ferrell, was part of the case of Chesterfield Cigarettes that I received from Mosely on June 15, 1939. Thomas Ferrell paid me $15.00 for 15 cartons Chesterfield Cigarettes. * * * I knew it was wrong to do this but I thought I could take a chance and get by. I have known Mosely about 5 or 6 years."

J. C. Thomas, a taxi driver, testified that appellant had sent him on three separate occasions to the Walgreen Drug Store to pick up a package, and had each time paid witness one dollar for the service; that Mosely would bring the package from the stock room of the store and put it in the taxi and witness on each occasion delivered the package to appellant; that one of said trips was made on the 15th day of June, 1939. Witness testified that there was nothing supicious about the transactions so far as he was concerned; that it was in broad open daylight. The package delivered by the witness on June 15 was "all sealed up."

Appellant testified upon his trial. He admitted buying cigarettes from Mosely on several occasions and paying him therefor, but denied that he knew they were stolen. He claimed never to have bought at any one time more than 32 cartons, and that he never got an unbroken case either on June 15 or at any other time. He repudiated his confession; denied that he had been warned; denied that he knew what was in the confession, and asserted that he had been forced to sign it.

(3) The State contends that under the facts appellant can be held guilty as a principal upon the theory that where persons enter into a conspiracy by the terms of which one person is to steal the property and deliver it to another of the conspirators who, though not present at the theft, shall sell the same and divide the proceeds, that the party to such conspiracy who converts the property to money and divides the proceeds pursuant to the previous agreement is a principal whether or not he was present at the time the theft was actually committed. If Mosely retained an interest in the cigarettes until they were sold by appellant and his part of the money from the sale was paid over to him by appellant, there is no doubt of the soundness of the State's position. However, if Mosely sold to appellant the stolen cigarettes at a specified price which he was to receive from appellant, and had no interest in what became of the cigarettes after he delivered them to appellant, the latter would not be a principal in the theft. See Rountree v. State, 140 Tex.Cr.R. 188, 143 S.W.2d 942, and Rountree v. State, 140 Tex.Cr.R. 421, 145 S.W.2d 895. The principles of law are discussed in Smith v. State, 21 Tex.App. 107, 17 S.W. 552; Kolb v. State, 88 Tex.Cr.R. 593, 228 S.W. 210; Burow v. State, 85 Tex.Cr.R. 133, 210 S.W. 805; Byrd v. State, 117 Tex.Cr.R. 489, 38 S.W.2d 332; McInnis v. State, 122 Tex.Cr.R. 128, 54 S.W.2d 96; Coy v. State, 131 Tex.Cr.R. 489, 100 S.W.2d...