21 S.W.2d 525 | Tex. Crim. App. | 1928
Lead Opinion
Offense, theft of an automobile; penalty, three years in the penitentiary.
Appellant drove a Chevrolet car belonging to prosecuting witness from McLennan County, Texas, to Arkansas, beginning the journey about the 29th of August, 1927. About forty days thereafter he was arrested for its theft in Little Rock, Arkansas, and the car found in his possession. Appellant claims that he borrowed the car from prosecuting witness for the purpose of going to Little Rock to take the baths for an injury incurred during the war. Apparently the car was driven off by appellant in the presence of prosecuting witness but according to the prosecuting witness same was without his consent and against his express direction. According to prosecuting witness appellant said at the time that he would be gone with the car about twenty minutes.
Two alleged errors are presented in the brief of appellant.
The first of these relates to the action of the Court in excluding the offered testimony of the father of appellant to the effect that appellant stayed all night with said witness on the night the car was alleged to have been taken and told the witness that he was going to Arkansas; that the car was loaned to him by prosecuting witness, the owner of same, and that he had the permission of the owner of said automobile to use and drive the same in going to Arkansas to take the baths. Practically all of this was admitted by the Court except the statement that he had borrowed the car. It appears from the qualification to appellant's bill presenting this matter that he was not arrested for something like forty-two days *284
after this and that at this time he had not been charged with or suspected of the theft and that same was excluded as being self-serving. Appellant relies upon the case of Stapleton v. State,
"The statements of appellant, which were excluded, were made during the time the state was claiming the acts of appellant showed an intent to convert the car to his own use."
Such are not the present facts. The question presented, we think, is ruled by Seebold v. State, written by Justice Hawkins, who also wrote the Stapleton opinion, supra. We quote from the Seebold case:
"But his declarations before arrest, or before his right of possession is questioned, are regarded as self-serving, and rather smack of a preparatory defense, because of conscious wrongful possession; likewise, his statements made subsequent to arrest, or to the time his right of possession is challenged, where time has elapsed for him to reflect and fabricate an explanation, are excluded; they pass from the domain of res gestae of the particular transaction, to-wit: a challenge of his possessory right, and again become obnoxious as self-serving and hearsay." Seebold v. State,
The offered testimony was not a part of the res gestae of the taking nor had the possessory right of appellant at this time been either directly or circumstantially challenged, nor had he been arrested for the theft; nor is there any circumstance to show that he was called upon to explain his possession at the time of making the statements aforesaid. The testimony therefore was properly excluded. Phillips v. State, 19 Tex.Crim. App. 163; Ward v. State,
The action of the Court in authorizing a conviction if the property was obtained by the defendant by some false pretext is attacked because it is claimed that there was no evidence to support such a charge. The Court undoubtedly had in mind in giving this charge the evidence relating to the statement testified to by prosecuting witness *285 that appellant said he would be gone with the car about twenty minutes when he drove off in same. Under the peculiar circumstances of this case an implied consent to the taking was clearly inferable from the facts surrounding the taking in the absence of the statement just quoted. Without this and the charge objected to the State was practically without a case. This statement constituted, we think, a sufficient basis in the evidence for the charge complained of.
Finding no errors in the record, the judgment is affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
Addendum
The first count in the indictment charged theft by a fraudulent taking, the second count charged theft by conversion. Conviction was under the first count, which was tantamount to acquittal of theft by conversion. The foregoing statement becomes pertinent in view of appellant's renewed insistence that reversible error was committed by the trial court in excluding the statement made by appellant to his father. The count of theft by conversion having been submitted to the jury the excluded statement was probably admissible under authority of Stapleton v. State, 107 Tex.Crim. R.,
Appellant also complains that the court should not have submitted the issue of theft by false pretext, on the ground that the evidence raised no such issue. It is true the owner testified that he refused his consent for use of the car for even twenty minutes, but the fact that appellant drove the car away practically in the presence of the owner who then took no steps to apprehend appellant, and made no complaint to the officers regarding the taking of his car until the next morning, together with the relations between the parties was persuasive that the owner's refusal was not as positive as claimed by him; this led us to the conclusion expressed in the original opinion that under the very peculiar circumstances of this case implied consent to the use of the car for twenty minutes was inferable, and therefore the court was not without grounds to submit the issue objected to. The general principle involved may be found stated as follows in Segal v. State,
"One who with a preconceived design to fraudulently deprive the owner of personal property, obtains possession of it and makes use *287 of the possession to convert the property to his own use, would not be excused from a charge of theft by the fact that the owner consented to part with the possession of his property. This we understand to be a general rule often applied in our own and other jurisdictions."
The motion for rehearing is overruled.
Overruled.
