Sweeney v. State

• Decision Date: 13 February 1918
• Docket Number: (No. 4899.)
• Parties: SWEENEY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 335

205 S.W. 335

SWEENEY v. STATE.

(No. 4899.)

Court of Criminal Appeals of Texas.

February 13, 1918.

On Motion for Rehearing, March 13, 1918.

On State's Motion for Rehearing, June 26, 1918.

Dissenting Opinion June 28, 1918.

Appeal from District Court, Tom Green County; C. E. Dubois, Judge.

Ralph Sweeney was convicted of burglary, and he appeals. Reversed and remanded on rehearing, and motion for further rehearing overruled.

J. T. Thomson, of San Angelo, for appellant. J. A. Thomas, Dist. Atty., of San Angelo, and E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of burglary, his punishment being assessed at two years' confinement in the penitentiary. There was an order entered allowing 30 days in which to file statement of facts and bills of exception. The bills of exception were not filed within the time allowed; in fact, they were not approved until the 24th day of October and filed November 24th. The court adjourned on the 25th of August. The bills therefore cannot be considered. The Assistant Attorney General moves to strike out the statement of facts because not filed within any time permitted by law. As before stated, court adjourned on the 25th of August, and the statement of facts was not filed until the 24th day of November, being 91 days after court adjourned. We are of opinion under the decisions the Assistant Attorney General's point is well taken and should be sustained. Without the bills and statement of facts the questions presented for revision will not be decided.

The judgment is affirmed.

On Motion for Rehearing.

The judgment was recently affirmed. The defects have been remedied, and the case will be tried on the completed record.

The indictment charges burglary of a house in the possession of B. C. Alexander. Alexander is a brother of Mrs. Guthrie, who owned the house. It was a garage situated on her homestead. The property alleged to have been taken from the garage were automobile tires; they being removed from the auto which was in the garage. This occurred in February; at least the tires disappeared from the car in February. Mr. Guthrie, former husband of the owner of the house and auto, had died the preceding year. Alexander became temporary administrator, but had been discharged as such in January, prior to the alleged burglary. Mrs. Guthrie was left by the will of her husband sole executrix as well as sole heir and owner of all the property owned by Guthrie in his lifetime. She assumed control of it by virtue of the authority of the will upon the discharge of her brother, Alexander, as temporary administrator, and this occurred prior to the alleged burglary. Alexander's possession of any of the property was as agent of his sister, Mrs. Guthrie. He says:

"The automobile was not my personal property, but I had control of it for the purpose of selling it. It belonged to Mrs. W. A. Guthrie. That homestead didn't belong to me. It belonged to Mrs. W. A. Guthrie. She was living on the property at the time. She has been living on that property and the property back of where she now lives ever since she married. The property has been used as a homestead and for living purposes, and has been offered for sale at different times and in different ways. I didn't own the property; I simply had control of it. I don't now recall the date of the death of W. A. Guthrie, but it was in November, 1914."

He had authority, from the testimony, as the agent to sell this auto, and even the homestead. This was from his sister, Mrs. Guthrie. If he was in possession of the property at all, it was by virtue of the above-stated facts. He had taken a gentleman by the name of Buck to see the car with a view of selling it to him. On the second trip, which was about two weeks after the first, a trade was consummated, and Buck became the purchaser of the auto. Between the first and second visits of Alexander and Buck to the garage, it is claimed, the tires disappeared from the auto. In this connection we might further say as to Alexander's authority, he made this statement:

"This property did not belong to me, but was in my possession for sale, and that is all."

This garage was usually kept closed. It seems, however, that while he was trying to sell the car to Buck he was at the garage and found the door open and fastened the door.

The question is raised as to Alexander's ownership as alleged in the indictment. His possession of the property, if it be held he had possession, was for the purpose of sale and looking after it until he disposed of it. It is clear and beyond dispute that the garage was on Mrs. Guthrie's homestead, on the same lot on which her residence was situate and on which she lived with her family, which, it seems, consisted of her mother and servants, if she had servants. We are of opinion that the testimony does not show such exclusive control, possession, and management of the garage as would constitute Alexander the special owner. The mere fact that he had control of the car to the extent of selling it, and it was not in his possession, but in the possession of his sister and on her homestead, would not constitute him, under our law, we think, the special owner.

There is another question presented, that is, that the evidence is not sufficient. The tires were missed in February, and found in possession of the defendant something like 3½ or 4 months afterward. There is some question as to the identity of the tires, but, conceding they were sufficiently identified, when appellant was found in possession of them, he gave an account of his purchase. There is no other evidence in the case to connect appellant with the burglary. If the house was open when the tires were taken, it could not constitute burglary, because there would be a want of breaking. If he came in possession of them from another, his possession would not amount to evidence to connect him back with the burglary. Possession of property recently after the theft would be evidence against the possessor to be introduced as a fact or circumstance on his trial, but that of itself after an intervening time of 4 months or thereabouts would hardly be sufficient under the authorities. These authorities are found collated by Mr. Branch's Ann. P. C. on pages 1332 and 1333. In order to connect appellant with the burglary by reason of the possession of stolen property, it would be necessary to show that he was in possession of this property recently after the burglary, and, under the rules of circumstantial evidence, that he broke and entered the house. This seems to be the settled rule under all the cases. In section 2463, Branch's Ann. P. C. p. 1332, the cases are collated to the effect that to raise the presumption of guilt from the circumstance alone of possession of property recently stolen the defendant must be shown to have been in possession thereof recently after the theft. Then follows a collation of the cases where it was held that the possession was too remote. One of them, Menchaca v. State, 58 Tex. Cr. R. 198, 125 S. W. 20, held that the possession of the stolen property 3½ months was too remote, and in Yates v. State, 37 Tex. 202, 5 months was held to be too remote, and in Bragg v. State, 17 Tex. App. 221, 5½ months was too remote.

There is another question also raised, that the court should have instructed the jury more fully with reference to the account given by appellant of his possession of the property. The court instructed the jury substantially that, if appellant bought the property as claimed or there was a reasonable doubt of this purchase, he should be acquitted; but on the other question, to wit, that, the state having put in the purchase theory, the jury should have been informed that it devolved upon the state to prove the falsity of this statement, upon another trial we think the court should so instruct the jury.

There is a bill of exceptions reserved to the admission of testimony with reference to the disappearance of another auto tire at a different time and a different place. Objection was urged to this admission. We are of opinion that this should not have gone to the jury. It tended in no way to throw light upon this transaction. It seems from the bill that another party had missed a tire, and in tracing it up found it in appellant's possession. Appellant, ascertaining the fact, returned the tire. It was not contemporaneous with the transaction alleged in this case and shed no light upon it so far as we are able to understand from the facts or bill of exceptions.

For the reasons indicated, the judgment will be reversed, and the cause remanded.

On State's Motion for Rehearing.

The state asks a rehearing with a view of setting aside the former reversal and securing an affirmance of the judgment. In a very ingenious and able argument the state makes several contentions. Among other things, it is strenuously urged that the opinion was in error in holding that Alexander was not in custody, control, and management of the property; in other words, that the allegation was improper in alleging in him the ownership of the automobile. In the light of what is said in the argument for the motion we have read some of the cases cited. Those cases we think were properly decided, but are inapplicable to this case.

It is deemed unnecessary to restate the testimony bearing upon the ownership in Alexander, some of which was set out in the original opinion, but, as we understand the evidence, Alexander was not in exclusive management and control of the property. There is no claim that he owned it, and the state's contention is only based upon the proposition that he had exclusive care, control, and management of the property. We do not believe the evidence sustains this proposition. He was but the agent of the owner to sell the property, and whatever control he may have had was only with a view of making the sale. The property was not in his actual possession, nor did...