Lee v. State , 428 S.W.2d 328 ( 1968 )

OPINION

BELCHER, Judge.

The conviction is for felony theft of an automobile; the punishment, two and one-half years.

The first and second grounds urged for reversal are that, “The Trial Court erred in failing and refusing to instruct the jury that they could not convict Appellant Lee upon the statements and oral declarations which Deputy Sheriff Horton and Chief of Police Cook testified that Don Hogue and Ronnie Lynn Fountain made to them or to either of said officers unless said statements were corroborated by other evidence tending to connect the Appellant with the offense committed and that the corroboration would not be sufficient if it merely showed the commission of the offense”; and even if said statements were made in appellant’s presence his right to remain silent and not give evidence against himself was destroyed.

Hogue and Fountain did not testify.

Chief of Police Cook testified in part as follows:

“Q I see. Where did you get these license plates JGV767?

“A Over on the east side of Mud Creek on Highway 204.

“Q Highway 204?

“A Yes sir.

“Q Where abouts were they?

“A They were thrown out in the woods out in a brush pile.

“Q. I see. How did you know that they were out there?

“Appellant’s Counsel: Your Honor, we object to any — well, may I take him on Voir Dire just a minute.

“The Court: You may.

“Appellant’s Counsel: It was not through anything that this boy told you that you found those plates, by this boy I mean Charles William Lee.

“A Not what he told me.

“Appellant’s Counsel: Yes sir. Now you were told by another person where those plates were, is that right, Chief?

“A Best of my recollection it was three of them that told me.

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“Q Don’t you recall testifying in April of 1965 that it was someone else that told you where the license plates were, took you where the license plates were.

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“A I don’t remember, sure don’t. I wouldn’t swear to it, but I do remember three subjects going with us and showing us where things were throwed out by the side of the road and showed us the place where the license plates and air cleaner were throwed away.

“Q Do you mean they were all three in the same police car that went out there ?

“A Yes sir.”

Deputy Sheriff Horton testified that appellant either alone or in company with Hogue and Fountáin directed him to the items taken from the stolen Pontiac; that appellant was not alone while going to the scene and that appellant saw the plates when they were picked up near the road.

The witness Horton further testified:

“Q All right, where did you go from there ?

“A I went on down the highway looking for some papers that had been throw-ed out of the car.

“Q Did you find them?

“A Yes.

“Q Prior to the time you found these papers did you know where they were?

“A I did not.

“Q Did you have any idea where they were?

“A I did not.

“Q And who directed you to the location where the papers were ?

“A. The three subjects in the car.

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“Q All right, I will ask you specifically at any time on that trip did the defendant, Charles William Lee, admit the taking of the Pontiac automobile of Mr. Ernest Arrington?

“A I will put it this way, all three admitted they had stolen a car, I’m not specific saying not one, but they all three admitted stealing the car or implicated they were all in it.”

No testimony of Cook and Horton is found showing anything that Hogue and Fountain told them or either of them in the absence of the appellant which lead to the discovery of the license plates.

While testifying, the appellant admitted he was behind the steering wheel of the stolen Pontiac when arrested, but testified that he had nothing to do with stealing it and did not know it was stolen until his arrest; and that he never told or took the officers to the license plates, and that he was asleep when he, Hogue, and Fountain went with the officers to get the plates.

The court charged the jury that if they found beyond a reasonable doubt that Hogue and Fountain made oral statements pertaining to the plates and filter, not to consider them for any purpose, unless they were made in the presence and hearing of the appellant.

In light of the record including the testimony of the appellant, no error is perceived in failing to charge the jury on the necessity of corroborating the oral statements of Hogue and Fountain before they could convict. The evidence, outside of any statements made by Hogue or Fountain, was sufficient, in and of itself to sustain the conviction in this case. No reversible error appears in giving the charge pertaining to the consideration of said statements, if made, for the reason that they occurred between the officers and the three parties, each having made practically the same statement in the presence of each other under the same circumstances. Blake v. State, 81 Tex.Cr.R. 87, 193 S.W. 1064. Grounds of error Nos. 1 and 2 are overruled.

A ground of defense was that the offense of theft was actually committed and completed by Hogue and that the appellant was not present or aiding or abetting Hogue at the time of the theft of the automobile; and that the court should have charged the jury that to constitute the offense of theft there need be no asportation of the stolen property.

The court charged the jury that if appellant was in recent possession of the automobile, they could not convict him unless they found beyond a reasonable doubt that it was stolen, and that the appellant obtained possession of said automobile in the original theft, if any, while acting either alone or as a principal offender; and applied the law of reasonable doubt thereto.

In light of the evidence, the charge as given sufficiently protected the rights of the appellant. Ground of error No. 3 is overruled.

The other grounds of error presented have been considered and it is concluded that none of them reveal error.

The judgment is affirmed.