Torrence v. State

• Decision Date: 21 May 1919
• Docket Number: (No. 5318.)
• Parties: TORRENCE v. STATE.
• Court: Texas Court of Criminal Appeals

212 S.W. 957

TORRENCE v. STATE.

(No. 5318.)

Court of Criminal Appeals of Texas.

May 21, 1919.

Rehearing Denied June 18, 1919.

Appeal from District Court, Hill County; Horton B. Porter, Judge.

Dan Torrence was convicted of theft, and he appeals. Affirmed.

J. Webb Stollenwerck, of Hillsboro, for appellant.

E. A. Berry, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of the theft of an auto; his punishment being assessed at five years' confinement in the penitentiary.

The facts show that at night from the public square at Hillsboro an automobile was stolen. Shortly afterwards it was sold at Gorman, Eastland county. Appellant was arrested, and made a verbal confession, substantially, that "we" took the car at Hillsboro and sold it to Jones at Gorman. This confession was made to the sheriff of Coke county, who went to Gorman, saw Jones, who showed him a Ford car, but it proved not to be the one stolen from Hillsboro. He returned to Coke county, and shortly afterwards was called up by Jones stating that he had the car. He returned to Gorman and recovered a car, which proved to be that which had been stolen. Jones had the car when the sheriff first went to Gorman, but did not show it.

It is contended, inasmuch as the sheriff had, after the confession, received information from the sheriff of Hill county as to the number of the auto, that therefore this confession did not lead to the recovery of the car. Jones testified that Allsup and defendant came to Gorman with the car and he bought it. Without going into detail of his statements, his evidence is, in substance, that their conversations and acts showed they were acting together in selling the car, and were interested in it. The testimony is sufficient to show that appellant was interested and assisted in the sale, and that the evidence makes him a principal within the contemplation of the law, which justified the court in charging with reference to the law of principals.

With reference to the confession, we are of opinion that it was admissible. The statement led to the finding of the stolen property. The whereabouts of the car was not known until this confession was made. Appellant's contention that the sheriff of Coke county received information as to the number of the car from others would render the confession inadmissible. We cannot agree to that proposition. The car was fully identified independent of the number and by an array of testimony. If the confession leads or conduces to the recovery or finding of the property, it would be sufficient to admit it. The authorities hold that, if the statement be with regard to where the fruits of a crime, or the instruments with which a crime was committed, are secreted or to be found, it is not essential, in order to render the confession admissible, that such property or instruments be found in the exact place stated; but it is sufficient that they be found in the immediate vicinity of such place, and be found in consequence of the information afforded by the defendant. See Buntain v. State, 15 Tex. App. 485; Davis v. State, 8 Tex. App. 510. The facts and circumstances stated and found to be true must be such as conduce to establish the guilt of the defendant, and if they are not of this character, the confession will not be admissible. Where the fact or circumstance stated and found to be true, and which is inculpatory, conducing to establish his guilt of the crime for which he is on trial, it will render the confession admissible. Owens v. State, 16 Tex. App. 448; Ortiz v. State, 68 Tex. Cr. R. 527, 528, 151 S. W. 1056. The car was located, by reason of the confession, in possession of Jones at Gorman. Some of the circumstances put in evidence as a means of identifying the car would not, therefore, render the confession inadmissible, especially in view of the fact it was fully identified independent of the number of the car mentioned.

It is also contended that there is a variance between the allegation and the proof as to ownership. There were two counts, one alleging ownership in Howard, and the other in Harper. The count alleging ownership in Howard alone was relied upon and submitted to the jury. The testimony is uncontroverted to this effect that Howard sold Harper the car, receiving a check for it. Howard was to keep the car until Harper could call and get it; he not being able to take charge of it at the time he purchased it. He was to return in a day or two and get it. Howard did keep the car, and had it in possession and was using it the night it was stolen. We are of opinion that this would put the ownership, so far as this case is concerned, in Howard; he having the control, care, and management of it until it was delivered to Harper. It may be well to state a few general rules in support of the above...