171 S.W. 709 | Tex. Crim. App. | 1914
Appellant was convicted of receiving and concealing stolen property, and his punishment assessed at two years confinement in the State penitentiary.
This is the second appeal in this case, the opinion on the former appeal being found reported in 73 Tex.Crim. Rep.,
On this trial the witness Claude Rice, who testified on the former trial, and the person whom the State's evidence would show was guilty of the theft of the property, and was the person from whom appellant *392 received it, was not in attendance on court. It is not insisted by appellant that the evidence does not amply show that the witness is no longer a resident of Texas, but is a resident of the State of California; and under the holding of this court that the testimony of a witness shown to be beyond the jurisdiction of the court may be reproduced on the trial, the court properly admitted the evidence, unless such evidence is rendered inadmissible by reason of the fact that the letters received from Claude Rice and the testimony of Frank Barrett showing that the witness Rice is now confined in the penitentiary in California under a judgment of conviction in that State, renders him incompetent as a witness.
Appellant contends that it is not the status of the witness at the time he gave the testimony, but his status as a citizen at the time the testimony is offered in evidence which governs in regard to whether or not such testimony is admissible in evidence. The question is one of far-reaching effect, and one to which we have given much research and study, and we have arrived at the conclusion that Judge Stayton, in the case of Webster v. Mann,
Frank Barrett testified that Claude Rice, at the date of this trial, was in the California penitentiary. He does not testify as to the nature of the offense he had been convicted; in fact, his testimony as a whole shows that he personally had never been in California, and that his information was gathered wholly from letters he and others had received from Claude Rice and other sources of information. The witness testified that Rice was convicted at Stockton, California, but, as before stated, does not say of what offense he was convicted. The record further discloses that several letters received from Rice, one from Stockton, California, and the others from San Quentin, California, dated, respectively, June 4, June 17 and July 4, were introduced in evidence, but the record shows the contents of the letters were not admitted. The envelopes in which the letters were received, one of them postmarked "Stockton, Cal., June 5, 1914," the others being stamped "San Quentin, Cal., June 18, 1914," and "San Quentin, Cal., July 6, 1914," were also introduced in evidence. So, if we go by the recitals of the record, the only evidence of the fact that Rice is in the penitentiary in California is the evidence of Frank Barrett, who testified that the witness at the date of the trial was in the penitentiary in California, and that he had been convicted at Stockton, California, *393 and we are left in the dark as to what offense he had been convicted, and in the dark as to whether he had been convicted of a felony or misdemeanor — in fact, no information is obtainable from the record of what offense Rice was convicted. But if we go to the contents of the letters received from Rice, which accompany the record, but the record states were not admitted in evidence, do we receive any more information? In the letter dated June 4, at the time he began to write, he merely says, "Well, I have crawled up a stump. I am going to cop a plea; don't know for sure what time I will get — not over five though." Later in the letter he adds: "I just went over and got my time. Frank, I got ten years — that is some time." The second letter is dated San Quentin, California, June 17, and in it shows that he had reached the penitentiary and was working in the jute mill, he stating that he would get three and one-half years off for good behavior, and would only have to stay six years and six months, and would get out December 7, 1920. The letter dated at San Quentin, California, July 7, merely shows that he is still in the penitentiary, and in none of those letters, and nowhere else in the record is it disclosed of what offense he was charged or convicted, but all that is shown is that upon a plea of guilty to some unnamed offense he was sentenced to ten years confinement in the penitentiary in the State of California, and was at the time of the trial confined therein, and that he would not be liberated before December 7, 1920.
Had Rice been in attendance on court at Dallas on the trial of this case, and such facts only shown, would they have rendered him incompetent as a witness? Under the laws of this State felonies and misdemeanors have, as a dividing line the fact, if the punishment is by imprisonment in the penitentiary it is a felony; if an offense is not punishable by imprisonment in the penitentiary it is a misdemeanor, but this is not true in all jurisdictions.
The question of whether a conviction for a felony in another State will render a person incompetent as a witness in this State, is governed by statute. If we had no statute on the question, such a conviction would not render one incompetent as a witness. As said in the case of Logan v. United States,
This is held to be the rule in our State in civil cases. In Missouri *394
Ry. v. DeBord, 21 Texas Civ. App. 691[
The evidence and all the evidence would show that Claude Rice obtained the possession of the property under circumstances that would constitute theft and not embezzlement, and those bills which complain of the introduction of the evidence of Rice and Barrett, because their evidence would show that Rice was guilty of embezzlement, present no error. There must have been a trust relation existing between Rice and the person from whom he obtained the goods, before the evidence would suggest a case of embezzlement. Neither the person in possession, nor the owner of the goods, knew Rice, and he obtained possession of the goods without their knowledge or consent. The owner had gone in bathing and deposited his valuables with the bathhouse keeper, and Rice, in some way not disclosed, had obtained possession of the check given for the goods to the owner. He took this check and presented it to the bathhouse keeper, and obtained the watch, diamonds, rings, and at once proceeded to appropriate them to his own use. The next day the jewelry was delivered into the possession of appellant, who concealed it in his safety deposit vault. Such evidence does not raise the issue of embezzlement by Rice, but theft pure and simple.
All evidence which would have been admissible on the trial of Rice to show that he was guilty of theft was admissible on this trial to show that the goods delivered to appellant were stolen goods, and the court did not err in so holding. Of course, the evidence would have to go further and show that appellant at the time he received the goods knew they were stolen goods, and with this knowledge concealed them. This it did apparently to the satisfaction of the jury.
There was no objection made to the charge at the time it was submitted to appellant's counsel for inspection; no special charges were requested, and the court having very fairly and fully submitted the *396 issues made by the testimony, and in a way not complained of by appellant, the judgment is affirmed.
Affirmed.