Wilson v. State, 13041.

• Decision Date: 12 March 1930
• Docket Number: No. 13041.,13041.
• Citation: 28 S.W.2d 804
• Parties: WILSON v. STATE.
• Court: Texas Court of Criminal Appeals

Page 804

28 S.W.2d 804

WILSON v. STATE.

No. 13041.

Court of Criminal Appeals of Texas.

March 12, 1930.

Rehearing Denied June 11, 1930.

Appeal from District Court, Dallam County; Reese Tatum, Judge.

Earl Wilson was convicted for receiving and concealing stolen property, and he appeals.

Affirmed.

Tatum & Strong, of Dalhart, and Bledsoe, Crenshaw & Dupree, of Lubbock, for appellant.

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

LATTIMORE, J.

Conviction for receiving and concealing stolen property; punishment, two years in the penitentiary.

Appellant owned a ranch, and, according to the state's theory of the case, needed cotton-seed cake with which to feed his cattle. He approached two men engaged in hauling and trucking to know if they knew where he could get any. They informed him that they did, but that the cake belonged to another ranchman who was a friend of one of the men thus approached. A price was agreed upon, and thereafter at night the two men went in a truck to the ranch of a Mr. Coble situated across the line in New Mexico. From this ranch the said two men took fifty sacks of cotton-seed cake of value exceeding $100, brought it back to appellant's house, where it was put in appellant's garage and later taken out to his ranch. He paid the two men the price agreed upon.

In his brief appellant sets up that the indictment herein is fatally defective, in that it did not allege the fraudulent taking of property of value in New Mexico, and that this would be theft under the laws of that state. Said indictment charges that appellant, in Dallam county, Tex., received and concealed property of the value of $125, which had theretofore been acquired by B. and K. in such manner as that same came within the meaning of the term theft, etc. No attack was made on the indictment in the trial court and we think it not subject thereto had same been timely made. The authorities cited have application to the offense set out in article 1559, Pen. Code, which forbids the bringing of stolen property into this state, or forbids the bringing of stolen property which has been received and concealed in another state, into this state. The writer is of opinion that such authorities have no application, and that the reason is apparent. In charging one with the offense set out in said article 1559, supra, it is necessary to allege that the things done by the accused were not only done in another state than Texas, but also that afterward the property thus stolen in another state, or received and concealed in another state in violation of the law of that state, was brought into Texas. Not so here. Everything done by the accused is alleged to have been done by him in Texas. The offense against him is fully described in the indictment. He is there apprised of every act of his relied on by the state as criminal, among which is included his reception of the property from another, and its prior acquisition by theft; but under all the authorities the name of the thief need not be alleged, nor need the time or place of the theft be stated, nor the facts constituting such theft. State v. Perkins, 45 Tex. 10; Nourse v. State, 2 Tex. App. 304; Brothers v. State, 22 Tex. App. 447, 3 S. W. 737; Hodges v. State, 22 Tex. App. 415, 3 S. W. 739; Mehlman v. State, 92 Tex. Cr. R. 559, 244 S. W. 602. We see nothing wrong with the indictment.

It is also insisted that the state fell short in making proof of the fact that the property in question was acquired by B. and K. in such manner as to make it theft. "Theft" and "larceny" are synonymous. Mathews v. State, 36 Tex. 675. See Bailey v. State, 18 Tex. App. 426. The state introduced in evidence a part of the statutes of New Mexico (Code 1915) which read as follows:

"§ 1525. Grand Larceny. Sec. 76. Every person who shall commit the crime of larceny, by stealing of the property of another any money, goods, etc., if the property stolen shall exceed the value of twenty dollars, shall be punished as provided in section 1529."

The state also introduced section 1529 of said statutes, which sets out the punishment for such larceny as confinement in the penitentiary for not less than one year nor more than ten years. This we think proof enough, and that there is nothing in the point presented.

Matters of objection to the charge, advanced in appellant's brief but not shown by exceptions taken thereto at the time of trial, cannot be considered. It could make no difference in determining appellant's guilt whether the original taker violated the laws of New Mexico or of Texas in committing such theft. The issue, as stated in the charge of the court, was, was the property stolen, and did appellant knowing that fact receive and conceal same, the latter proposition relating of course to a transaction occurring in Texas. The court's application of the law to the facts fully set this out. There was no exception to the charge for failure to explain the laws of New Mexico relating to theft.

The court gave a special charge requested by appellant to the effect that unless the jury believed beyond a reasonable doubt that appellant knew the cake in question was stolen, at the time he got same, they should acquit him. What is said by this court in Gorrell v. State, 73 Tex. Cr. R. 232, 164 S. W. 1012, has no application here, but relates to the offense above referred to and described in article 1559, Pen. Code.

Appellant excepted generally to the charge for its failure to submit affirmatively the defensive theory, but at the same time presented the special charge above referred to, which was given, and which fully presented the only defensive issue suggested, viz., that the cake in question was bought by appellant from Larry Kehoe without knowledge that same was stolen. The jury were told therein that if they so believed, or had a reasonable doubt thereof, they should acquit.

The exception to the charge on the ground that the court erred in submitting appellant's guilt of receiving and concealing, for the alleged reason that there was no testimony showing any concealing, is without merit. Such charge but followed the indictment, and was supported by testimony. That no injury resulted is manifest from the verdict which gave to appellant the lowest penalty.

The case was not one on circumstantial evidence. The accomplice witness, Barton, completely made out the state's case by direct testimony. When this is true, and the question is as to the sufficience of the corroboration, there is no need for a charge on circumstantial evidence. The court gave the usual charge on the necessity for corroboration of an accomplice witness, and informed the jury that they could not convict unless they believed beyond a reasonable doubt that there was evidence other than that of the accomplice tending to connect the accused with the commission of the offense charged. There was no exception to the court's charge in this regard. Appellant asked a special charge upon the question of corroboration, which was correctly refused. It is now insisted that the charge should have told the jury that the accomplice would have to be corroborated both as to the fact of the theft and of appellant receiving and concealing the alleged stolen property. The authorities cited are not apt. Cone v. State, 86 Tex. Cr. R. 291, 216 S. W. 190, was a case in which Cone was prosecuted as an accomplice, and what was said in the opinion in that case had reference to such situation, and appears to have no bearing here. Johnson v. State, 42 Tex. Cr. R. 440, 60 S. W. 667, was reversed for insufficient evidence. There seems no question but that in this case the accomplice was fully corroborated as to the fact of the theft. He gave the quantity and the description of the cotton-seed cake taken, as well as the time of the...