McNeely v. State , 106 Tex. Crim. 605 ( 1927 )

Conviction is for burglary of a house belonging to J. P. Parker, punishment being two years in the penitentiary.

About the first of February, 1923, J. P. Parker and his family moved from Comanche County to Lubbock County, bringing with them 225 jars of fruit, consisting of peaches, sweet pickles, berries of different kinds, tomatoes, preserves, cucumbers, and three cans of soap. All of the articles in question were stored in a small barn, the window being nailed up and the door fastened. On the night of March 20, 1923, the barn was burglarized and all the articles enumerated were stolen. The matter was promptly reported to the officers. Examination revealed that a car had been driven into the pasture and stopped between 150 and 200 yards from the barn. The tracks of three persons were found going backward and forward from this point to the barn, and a place under the fence indicated that a box or something had been dragged through. The car tracks were traced from where the car had turned around and started back to the road. At one point it had run into the fence and hit a post. From the tracks it could be seen that it was the left front side of the car which struck the post. At the point where the car had struck the post stains were discovered in the sand which the witnesses described as looking like stains from fruit juice. The tracks indicated that the car in question had 30x3-inch tires in front and 30x3 1/2 inch tires on the rear. The track of the left front wheel showed the casing to be non-skid or rough; tracks of the rear wheels indicated that the casings had been non-skid but were considerably worn and were of a different tread. The casing on the right front wheel left a smooth impression. We quote from the statement of facts — "The left front showed a print of a rough tread and the right front was smooth." The officers in company with Mr. Parker searched various places. About three days after the burglary they went to the home of appellant with a search warrant. They found a car with casings corresponding to the tracks made by the car in the pasture. The car was in a somewhat dilapidated condition. The front left fender was bent down and had fresh scratches on it, and between the seats stains were found which were thought to be berry stains. One of the officers testified that some berry seed were found in this stain. None of the stolen property was discovered in the house or about the premises of appellant upon this occasion, but no search was made of the garden. Appellant was not arrested at that time nor any complaint filed against him, the officers believing the evidence was insufficient to justify such action. Appellant accounted for the new scratches on the left fender, claiming he had run into a gate a few days previous. He denied that the stain in the car was berry stain, but claimed it was blood which had gotten on the car from a butchered hog he had hauled into town. About the last of August, some five and a half months after the burglary another search was made of appellant's premises. At that time there were found buried in the garden fifty-five jars of fruit, corresponding with the stolen property. The ground where this property was buried had sunk down. The witnesses testified that the conditions there indicated that the fruit had been buried some time as the dirt was settled firmly around the jars. Other canned fruit was found in appellant's house and taken to town with that recovered from the garden. Mr. Parker and his wife testified positively that the fruit found in the garden was a part of that stolen when the barn was burglarized, but declined to identify as belonging to them that taken out of the house. It was returned to appellant. This fruit, pickles and other articles stolen were in ordinary Mason and Kerr jars which Mrs. Parker claimed to have put up before leaving Comanche County. There was nothing distinctive about any of the fruit unless it be some peaches. Parker and his wife testified that the sweet pickles were put up from what they called "Cling Elberta" peaches, raised in their orchard in Comanche County. Appellant and his wife claimed they had put up the fruit found buried in the garden, as well as that found in the house; that the peaches claimed and identified by the Parkers had been given to them by appellant's father from his orchard and pickled by Mrs. McNeely. The state combatted this by bringing the man who had sold the place to appellant's father, and who testified there were no peaches in the orchard on that place which would make sweet pickles similar to those found buried.

Appellant objected to the evidence of Mr. and Mrs. Parker identifying the buried fruit as belonging to them on the ground that its possession by appellant was too remote from the date of the burglary. He also requested the court to instruct the jury that they could not consider as evidence against him the fruit claimed to have been stolen from the burglarized house because it was not found in his possession recently after the burglary, that is, because his possession thereof was too remote.The admission of the evidence objected to and refusal of the special charge are made the basis of complaint. In support of his contentions appellant refers us to the cases of Yates v. State, 37 Tex. 203; Bragg v. State. 17 Tex.Crim. App. 219; Menchaca v. State, 125 S.W. 20; Curlin v. State, 23 Tex.Crim. App. 681; Boyd v. State, 24 Tex.Crim. App. 570. The question of possession of recently stolen property was in all of those cases, some of them turning upon charges given or refused, and some holding the fact of possession alone was too remote to support conviction, but we think none of them uphold appellant's proposition which seems to be that because the alleged stolen property was not found in his possession until five and a half months after the burglary, that therefore proof of its possession should not be admitted at all. Appellant's contention is not deemed sound. Proof of the possession by accused of stolen property, whether recent or remote, may always be made and is a circumstance to be considered by the jury along with all other facts in evidence. Whether the possession alone or in connection with other facts will justify the conviction must depend largely upon each particular case, and the manner of exercising possession whether openly or secretly would be significant. Under the facts of the present case what was said by this court in Garcia v. State, 96 Tex. Crim. 324, 257 S.W. 558, seems peculiarly applicable.

"The finding of the fruits of the burglary in the possession of the appellant three months after the commission of the crime, part of the property exhibiting evidence of use, such as one of the pairs of shoes, and another part of the property showing to have been kept by someone without use until recently before its discovery in possession of appellant, would seem to us to entirely meet any objections as to the length of time between the burglary and the discovery of the property in appellant's possession. One might unlawfully take a quantity of property and conceal it for a much longer time than that which elapsed here before its discovery and still the possession of same by the accused furnish sufficient evidence to justify his conviction."

The state's evidence shows that the jars of fruit had been buried for quite a while. Appellant's explanation of why he buried it, taken in connection with his contention that it was not an unusual occurrence for people in his neighborhood to so treat their canned fruit, and the testimony of some of his neighbors about burying their own fruit, were all matters for the jury. In connection with these things the jury also might have considered significant the fact that tracks of appellant's car corresponded with those found on the ground near the burglarized house, also the recently scarred left fender of the car and the stains in the car. The jury was not bound to accept appellant's explanation that the fender was scarred by running into a gate, nor that the stain in the car was blood. While one officer said he saw no berry seeds in the stain, he did positively assert that it was not blood, and said the other officer claimed to have found some berry seed on a rod under the car beneath the crack in the floor. The other officer swore positively that he found berry seed. All of these matters were questions of fact to be determined by the jury. The court properly refused to instruct a verdict of not guilty. We do not feel authorized under the facts to say the evidence is insufficient to support the verdict.

The court told the jury in paragraph eight of his charge if they believed the fruit in question found in appellant's possession was not the property lost by Parker, or if they had a reasonable doubt thereof, they could not consider such possession as any evidence of appellant's guilt. The charge was objected to as assuming that the possession of appellant (if of Parker's property) was that of property recently stolen. This raises the same question already discussed. There was no error in assuming possession in appellant. He claimed both ownership and possession. No issue arose on this point. The charge was further objected to because it was claimed that instead of charging as he did the court should have told the jury if they found the fruit in question did not belong to Parker they should acquit appellant. If the court had given the instruction contended for he would in effect have withdrawn from the consideration of the jury other criminative facts in evidence and would have assumed to pass on them instead of leaving the jury to determine their cogency. What we have here said also disposes of the criticism directed at paragraph nine of the charge.

In bill of exception four complaint is made because the state laid a predicate for impeaching appellant's wife by eliciting from her testimony that the jars of fruit buried in the garden were her property and not the property of the prosecuting witness Parker, and in asking her if she had not made a statement contrary to this to the witnesses Ford, Russell and Johnson, it being the contention of appellant that this examination was with reference to a matter not brought out on direct examination of appellant's wife and not germane thereto. Bill number five is a complaint going to the same matter wherein objection was interposed to the witnesses Ford, Russell and Johnson testifying that appellant's wife told them that she "did not know anything about the fruit that was buried in the garden, but that Roy and the boys brought it one night and buried it, but that she claimed the fruit in the house." The contention of appellant cannot be sustained. We have carefully examined the testimony of Mrs. McNeely elicited on direct examination and find that she testified she had always canned fruit every year since she and appellant had been married; that she did some canning during the year 1923. She enumerated the various kinds of fruit and vegetables canned by her at that time, embracing all the things found buried in the garden. She also claimed that the peaches had been given to them by appellant's father; that part were put up in sweet pickles and part of them canned; also that her husband buried the fruit in the garden and that it had been buried about a month when the officers found it; also that at the time the officers came to the place the latter part of August she had most every kind of fruit and vegetables in the house; that none of the jars were taken by them out of the house, but only those taken from the garden, but that the next day they came back, and then also took the ones from the house, and further said they took not only those from the house without her permission, but also took those from the garden without permission. It is apparent from a reading of the direct examination of Mrs. McNeely that it was her purpose to convey to the jury the idea that she canned the fruit which was found in the garden. Upon cross-examination she testified that it had been the custom of her and her husband to bury fruit when they had no place to put it, although admitting they had never buried any before because they had a cellar or dug-out in which to keep it; also that some of the peaches found in the house had been buried but had been dug up a day or two before the officers made the search. It occurs to us the entire cross-examination of the wife was germane to her examination-in-chief and that no error was committed in permitting the state's counsel to ask her if she had not told the officers she had put up the fruit which was in the house but knew nothing about where that came from which was buried in the garden, but that it was buried one night by Roy and the boys, and when she denied making this statement to prove by the officers that she had so told them. Bell v. State, 88 Tex. Crim. 64, 224 S.W. 1108; Hicks v. State, 97 Tex. Crim. 373,261 S.W. 579; Soderman v. State, 97 Tex. Crim. 23,260 S.W. 23. The court properly limited this to impeaching purposes in his charge.

Finding no error in the record which justifies a reversal, the judgment is affirmed.

Affirmed.

ON MOTION FOR REHEARING.