85 Tex. Crim. 459 | Tex. Crim. App. | 1919
The appellant was charged with receiving and concealing stolen property from Allen Brittian.
The property was described in the indictment as four shotguns, and a case containing five hundred shells. Bach of the shotguns was valued at nine dollars and the shells at a total value of fifteen dollars.
The evidence disclosed that the appellant received the proper1-' described in the indictment. It was also shown that it was not all delivered to 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 five boxes of shells for which he paid $2.50; that he next received fifteen boxes of shells and two shotguns and on their receipt paid $16; and later received two shotguns at which time he paid $8. It was the theory of the State that prior to the theft the appellant had agreed to purchase any property that the accomplices might steal, and upon this theory the State insists that while the goods were delivered in parcels, that the aggregate value controls the grade pf the offense. On this phase of the case, the theory of appellant is that each delivery constituted a separate sale and transaction and that upon the value of the property delivered in each instance would depend the grade of the offense. There was evidence supporting appellant’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 price 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 sáles, that his offense, if guilty, would be that of a misdemeanor, it being conceded that it required the entire property to exceed the value of fifty dollars. 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
There was evidence that appellant on another 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 possssion of which he denied. From Brittian’s testimony it appeared that this kodak was delivered in pursuance of the general 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 possession, 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 work on Evidence, vol. 1, sec. 35: “In prosecutions for receiving stolen goods guilty knowledge is the gist or substance of the offense to be established by the prosecution. Evidence of collateral offences is admissible to establish such knowledge.” See also sec. 36, p. 140. We think the facts disclosed bring the evidence mentioned within one of the exceptions to the rule excluding evidence of collateral offences. See Morgan v. State, 31 Texas Crim. App., 1: also 62 L. R. A. p. 273, note.
The evidence touching other stolen property which did not come to the possession of the appellant, we think was irrelevant. In limiting the evidence of extraneous transactions the charge of the court
The remarks of counsel eomplained.of will not occur upon another trial and we deem a discussion of them and the other questions raised unnecessary.
For the errors pointed out, the judgment is reversed and the cause remanded.
Reversed and remanded.