Hutchings v. State , 1971 Tex. Crim. App. LEXIS 1793 ( 1971 )

OPINION

MORRISON, Judge.

The offense is felony theft with three prior non-capital convictions alleged for enhancement; the punishment, life.

Appellant’s first ground of error is that his plea of former jeopardy should have been sustained by the court because the appellant had previously been tried and acquitted for the offense of burglary growing out of the same transaction.

No plea of former jeopardy was filed in the trial court. The matter was raised after the motion for new trial was overruled. In Hill v. State, 186 S.W. 769 and in Watson v. State, 282 S.W.2d 715, we held that the plea of former jeopardy must be pled before trial and cannot be raised for the first time on motion for new trial. See also Galloway v. State, Tex.Cr.App., 420 S.W.2d 721; Mahoney v. United States, 137 U.S.App.D.C. 3, 420 F.2d 253; Haddad v. United States, 9 Cir., 349 F.2d 511. We need not decide whether the rule in Hill, supra, is still applicable, because the record of the former trial is not before this Court and the holding of the Supreme Court of the United States in Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469, is not applicable.

His second ground of error is that the court erred in not instructing a verdict of not guilty because of the failure of the state to prove the market value of the five guns stolen. In Senters v. State, 163 Tex.Cr.R. 423, 291 S.W.2d 739, this Court said the expressions “market value,” “fair market . value” and “cash market value” and “fair cash market value” are synonymous terms. McInnis v. Brown County Water Improvement Dist. No. 1, Tex.Civ.App., 41 S.W.2d 741, 746 (writ refused); Fort Worth & D. N. Ry. Co. v. Sugg, Tex.Civ.App., 68 S.W.2d 570 (no writ history); West Texas Hotel Co. v. City of El Paso, Tex.Civ.App., 83 S.W.2d 772, 776 (writ dismissed). We further said, “There is no material difference between “reasonable market value,” “reasonable cash market value” and “market value.” The witness Dufene testified that the appellant offered to sell him one of the guns for $50.00. The witness Perkins, a deputy sheriff for nearly twenty years, who lived in the community where the theft occurred, stated that he was familiar with buying and selling pistols, rifles and guns; that he owned 55 or 60 guns and knew of the sale of similar guns at the local hardware and gave his opinion as to the reasonable cash market value of the guns which were recovered from the appellant.

The witness Moore testified that he had twenty-two years of experience in buying and selling new and used guns of the same type as those stolen and that he understood cash market value as being the amount of cash that could be received for the guns, if given a reasonable time for selling them. He placed the total value of the guns in question at far more than $50.00, the amount which would make their theft a felony.

Appellant’s last ground of error relates to the court’s charge. The indictment alleged that each named gun was worth in excess of $50.00. Appellant objected to the charge because it authorized conviction if they found him guilty of stealing one of the guns so long as they also found that it was of the value in excess of $50.00. We find no error in the charge.

Finding no reversible error, the judgment is affirmed.