Witte v. State

• Decision Date: 23 March 1886
• Citation: Witte v. State, 17 S.W. 723, 21 Tex.App. 88 (Tex. App. 1886)
• Court: Texas Court of Appeals
• Parties: WITTE v. STATE.<SMALL><SUP>1</SUP></SMALL>

17 S.W. 723

WITTE v. STATE.¹

Court of Appeals of Texas.

March 23, 1886.

Appeal from district court, Bexar county; G. H. NOONAN, Judge.

Indictment of George Witte for theft. Verdict of guilty. Defendant appeals. Reversed.

Waelder & Upson, for appellant. J. H. Burts, Asst. Atty. Gen., for the State.

HURT, J.

This is a conviction for the theft of a filed paper, — a deed. It appears from the record that one Anastacio Camargo once owned a certain lot or parcel of land in the city of San Antonio; that his wife, Rosa Camargo, sold this lot to one Leal, and that Leal sold to Witte, the defendant; that Anastacio Camargo had adopted children, and that they were suing Witte for one-half interest in the lot of land; that there was no transfer from Anastacio Camargo to his wife, Rosa, known to Witte before the 3d day of June, 1885; that on that date the county clerk of Bexar county, Mr. Thad. Smith, received a letter purporting to be from Adolph Vidal, from the city of San Antonio, containing a deed from Anastacio Camargo to his wife, Rosa. The letter reads as follows: "San Antonio, June 2, 1885. Thad. W. Smith — My Dear Sir: This was handed to me by Senor Mateo, with two dollars. On account of pressure of time I send it to you by mail. Please record, and return at once to Senor C. C. Mateo, Monterey, Mexico. Yours, truly, ADOLPH VIDAL." Smith neither knew Mateo, nor the handwriting of the letter, or that on the envelope. This deed seemed to have been copied from a form. The body of the deed and the form for acknowledgment were in the same hand writing. The signature of the grantor and that of the notary were in different handwriting. The deed was dated October 10, 1881. Within about half an hour after Smith received the letter containing the deed, Witte came into his office. Smith bailed him, and said: "Come in here; here is something you have been looking for for several years." Smith then showed him the deed, and he proceeded to examine it. Bererra, Smith, and Witte were present. Witte seemed surprised. Smith showed him the letter also. The deed was examined by Bererra, Smith, and Witte. It seemed to be too new for its date. Smith compared the acknowledgment of the deed with the notarial docket and protest-book of Julius Hoyer, before whom the deed purported to be acknowledged, and compared them with the signature and seal. The signature appeared as near exact as could be. Hoyer had a peculiar signature. The seal differed. Witte said he expected something of the kind, "but thought it was a will;" that he had been told by Rosenheimer and others that there was a will. Smith had been told there was a will, and was surprised, as well as Witte, when he saw the deed. The acknowledgment was in proper form. Smith told Witte that it looked suspicious. Witte said it looked peculiar. Witte then left. The seal on the deed differed from Hoyer's seal, in that it had the word "Texas" around the margin of the seal instead of around the points of the star. There were two kinds of seals used at the time. Smith examined one of Hoyer's of same date as that of the deed, and it differed from the one used on the deed. Smith showed defendant the letter that accompanied the deed. He said he had been looking for some evidence from Mexico to show that Anastacio Camargo had made a will in favor of his wife. In the afternoon Witte came back, and said he did not know C. C. Mateo. Smith was born in San Antonio, and was 28 years of age, and did not know any other Adolph Vidal than the one here as a witness. Smith told Witte that he would record the deed and send it to Mateo, in Monterey, Mexico. The next morning, when Smith was coming to the office, he met Witte at the Presbyterian church, on Houston street. Witte said to him that he would like to get the deed; that he wanted it to show to his attorneys, Breneman & Bergstrom, or that they wanted to see it, (Smith does not remember which.) "Witte said: `I have a case in Justice NEUENDORF'S court at nine o'clock this morning. My attorneys are in the case,' and that he had to go to South Flores street to see a witness in this case, and would `leave the deed with Breneman & Bergstrom, and bring to you' when he came back." When Smith reached his office, his deputy was about to record the deed, and he (Smith) asked Witte to wait an hour, and the deed would be recorded. He said, "No;" he would like to take it with him, as he did not know when his attorneys would get through with the case; that he would bring the deed back within half an hour. Smith told him that if he would bring it back within half an hour he could take it, and handed him the deed. Witte left, and returned in half an hour, very much excited, and said: "You may kill me, or do what you please with me, but I have lost that deed, and I must have dropped it at Chavez's house when I pulled out papers to show witness, or I lost it in the car. What must I do about it?" Smith told him to go and see Capt. Shardein, and to tell Col. Belknap to instruct the street-car drivers to be on the lookout for it. Witte said he would do so. He spoke of advertising in the papers. He went away, saying he would see Shardein and Hughes. Witte told Smith afterwards that he had spoken to Shardein and Hughes several times, and that he had made thorough search. Neither Bergstrom nor Breneman had spoken to defendant about the deed. Mr. Adolph Vidal, spoken of by Smith, was a witness, and swears that "he was born in San Antonio; that he knew no one in this state named Adolph Vidal but himself, and that he never saw the letter before," — i. e., the letter shown to him, the letter which was sent to Smith and contained the deed. "There might be other Adolph Vidals in the state or in Mexico." Joe L. Morin testified "that he was representing the suit of the heirs against Witte for the one-half interest of the lot of land; that he had known ...