Lockhead v. State
213 S.W. 653
Tex. Crim. App.
1919
Check Treatment
MORROW, J.

The appellant was charged with receiving and concealing stolen property from Allen Brittian.

The property was described in the indictment as 4 shotguns and a case containing 500 shells. Each of the shotguns was valued at $9 and the shells at a total value of $15. The testimony of ‍​​​‌​​​​‌‌​​‌‌‌‌‌‌​‌​‌​​‌​​​​​‌​​‌​‌​‌​‌‌‌‌‌‌​‌‌‍Brittian and one Raymond Monday was used by the state. Both of these witnesses testified to their, participation in the theft of the property and its subsequent delivery to the apрellant.

[1-3] Exception was reserved to the court’s charge on accomplice testimony. The charge was defective, in that it authorizes a conviction thereon if it was believed by the jury to be true and was corroborated by other testimony tending to connect the appellant with the offense. It should also have *654 instructed the jury that it was necessary that the accomplice testimony in connection with the other ‍​​​‌​​​​‌‌​​‌‌‌‌‌‌​‌​‌​​‌​​​​​‌​​‌​‌​‌​‌‌‌‌‌‌​‌‌‍evidence should show the guilt of appellant beyond a reasonable doubt. See Standfield v. State, 208 S. W. 537, and cases therein referred to. The error is not available, however, for the reason that the court, at the -appellant’s request, gave a charge upon the subject which correсted the defect. The court, however, should have complied with the appellant’s request to instruct the jury that one of the accompliсes could not, by his testimony, corroborate the other. Roberts v. State, 44 Tex. Cr. R. 267, 70 S. W. 423; Heath v. State, 7 Tex. App. 464.

[4, 5] The evidence disclosed that the appellant received the property described in the indictment. It was also shown that it was not all delivered tq the appellant at one time, but that Brittian and Monday, after stealing the property, hid it under a church, and that there was first delivered to appellant 5 boxes of shells, for which he paid $2.50; that he next received 15 boxеs of shells and 2 shotguns, and on their receipt paid $16, and later received 2 shotguns at which time he paid $8. It was the theory of the state that prior to thе theft the appellant had agreed to purchase any property that the accomplices might steal, and upon this theory the statе insists that, while the goods were delivered in parcels, the aggregate value controls the grade of the offense. On this phase of the casе, the theory of appellant is that each delivery constituted a separate sale and transaction, and that upon the value of thе property delivered in each instance would depend the grade of the offense. There was evidence supporting appellаnt’s theory. In fact, his evidence presented the theory of innocent purchase, while that of the state presented the theory of guilty knowledge. In the state’s testimony, while it was contended that the appellant had agreed with the thieves that he would buy their loot, it was not contended that a рrice was agreed upon, but it was undisputed that the sales were not completed until negotiations were made in which the price was agreed upon. The appellant requested special charges presenting his theory that if the transaction constituted separate sales, his оffense, if guilty, would be that of a misdemeanor ; it being conceded that it required the entire property to exceed the value of $50. There was error in refusing to submit this theory. The ‍​​​‌​​​​‌‌​​‌‌‌‌‌‌​‌​‌​​‌​​​​​‌​​‌​‌​‌​‌‌‌‌‌‌​‌‌‍state insists, however, that this was harmless, for the reason'that there was a general verdict which includes the offense of concealing the property, and that that verdict should be applied to the aggregate value and not to each separate transаction. This is based upon evidence to the effect that after receiving the property the appellant denied his possession. The court did not submit the theory of misdemeanor at all. This was involved both, with reference to receiving and concealing. The total value of the property, as alleged in the indictment, is blit $51. There was evidence tending to show that its aggregate value was much less than that sum, in-which event, under any phase of the case, a conviction of a misdemeanor only would have been authorized. It further appeared that one of the shotguns had been sold by the appellant, and if he received the property in innocence of the theft, and subsequently concealed it after learning of the theft, the offense of concealment would have related only to such property as he had in his possession at the time he learnеd that it was stolen, and this would have eliminated the' value of the shotgun that he had sold, provided that at the time he sold it he was not aware that it was stolen. That he had such knowledge before it was sold was an issue of fact upon which the burden was upon the state. The grade of the offense of receiving all of the property in 6ne transaction was for the jury upon the conflicting evidence as to the aggregate value. Whether it was onе transaction or several was likewise a matter for their solution, as was also the value of the property in his possession at the time he concealed it, if he did so,- knowing it to be stolen. There was error in refusing to submit these matters to the jury.

[6] There was evidence that appellant on аnother occasion, about the same time of the alleged offense, had received from Brittian a stolen kodak, which was found in the trunk - of the appellant and the possession of which he denied. From Brittian’s testimony it appeared that this -kodak was delivered in pursuance of the genеral agreement with the appellant that he would purchase stolen property from Brittian. In view of the fact that the evidence introduced by the appellant affirmatively presented the theory of innocent possession of the property described in the indictment, which was found in his рossession, we think there was no error in receiving evidence touching his possession of the stolen kodak with knowledge of his unlawful act. It is said by Mr. Wharton, in his wоrk on Evidence, vol. 1, § 35:

“In prosecutions for receiving stolen goods guilty knowledge is the gist or substance of the offense to be ‍​​​‌​​​​‌‌​​‌‌‌‌‌‌​‌​‌​​‌​​​​​‌​​‌​‌​‌​‌‌‌‌‌‌​‌‌‍established by the prosеcution. Evidence of collateral offenses is admissible to establish such knowledge.”

See, also, section 36, p. 140. We think the facts disclosed bring the еvidence mentioned within one of the' exceptions to the rule excluding evidence of collateral offenses. See Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647; also 62 L. R. A. p. 273, note.

Thе evidence touching other stolen property which did not come, to the possession of the ‍​​​‌​​​​‌‌​​‌‌‌‌‌‌​‌​‌​​‌​​​​​‌​​‌​‌​‌​‌‌‌‌‌‌​‌‌‍appellant we think was irrelevant. In limiting the evidеnce of extraneous transac *655 tions, the charge of the court infringed the rule against charging on the weight of the evidence. On another trial, if the evidence relating to the kodak is received, it should be limited to the purpose of establishing intent or guilty knowledge in an instruction so framed as to рroperly guard the rights of appellant.

The remarks of counsel complained of will not occur upon another trial, and we deem .a disсussion of them and the other questions raised unnecessary.

For the errors pointed out, the judgment is reversed, and the cause remanded.

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