Asner v. State , 138 Tex. Crim. 420 ( 1939 )

Appellant has filed a comprehensive motion, reiterating some of the points raised originally, and also challenging our ruling in the original opinion relative to what might be termed an exculpatory statement concerning the two five inch wrenches only, which were a part of the property claimed by the State to have been received and concealed.

Unquestionably the admission of the possession of such wrenches was damaging, in a way, to appellant, and would and did show his possession thereof, leaving the fact to be further proven of their theft and appellant's knowledge thereof. His statement of their purchase from Clem Hines was also in a way exculpatory in so far as these two wrenches are concerned; but such a statement would only become exculpatory of a small portion of the property alleged to have been received and concealed, and therefore could not have resulted in imposing upon the trial judge the duty of authorizing in his charge an acquittal in this case, unless the State disproved the fact that such two wrenches were bought from Clem Hines. It seems that there was found and identified in appellant's possession other property, — as alleged in the indictment, which totaled over the value of fifty dollars, — that was not contained in the exculpatory statement. This property was identified as having been stolen from the complaining witness, and which property, exclusive of the two wrenches, amounted in value to more than fifty dollars.

At the most appellant was only entitled to have the jury charged that unless the State had disproved the statement relative to the purchase of these two wrenches from Hines, then they should not consider the same for any purpose in arriving at appellant's guilt in this matter. As observed in our original opinion, the court did charge the jury that if the jury believed, or had a reasonable doubt thereof, that appellant purchased any of the alleged stolen property from the Gulf Company, Sam Peltz, or anyone else save the two confessed takers thereof, then they should not take into consideration such thus purchased property in arriving at their conclusion in this matter. Under such a charge we think that the court sufficiently instructed the jury, in effect, that they must believe beyond a reasonable doubt that the appellant did not purchase such wrenches from anybody save the two confessed thieves before they could take the circumstance of the possession of such wrenches into consideration while determining the issues in this case. We do not think appellant was entitled to any further instruction on his partially exculpatory statement in this matter. The court could not tell the jury that because he had purchased two items of the many charged, that he was entitled to an acquittal, especially with the numerous other articles still unexplained; hence it naturally followed that he could only direct them to discard any items that they did not believe beyond a reasonable doubt were purchased from the two confessed original takers. If appellant had been charged with receiving fifty stolen wrenches, and had proved that he purchased five of these wrenches legitimately from a dealer, nevertheless such would not have entitled him to an acquittal, but would only have entitled him to have the jury not consider the possession of such five wrenches as a guilty circumstance in arriving at their verdict.

We are not impressed with the proposition that the testimony of the two confessed takers of the property should have been limited to the fact of the unlawful taking alone, but we do think that when present in person and giving their testimony, their testimony as to the sale or delivery of such stolen property was admissible for what it might be worth on the question of receiving and concealing such stolen property, of course, under proper instructions relative to their accompliceship. We think appellant has failed to recognize the fact that these two original takers were also witnesses not only to the original taking, but also to the receiving of such property, and the knowledge of its stolen character upon the part of appellant. This latter testimony was material, and surely this court has never held that such additional testimony could not be given by the original thief, provided he knew the same. The case of Forrester v. State, 152 S.W. Rep. 1041, only holds that the fact of the unlawful taking of the original thief would not be proof that the accused received the property, knowing the same to have been stolen, and such should have been thus limited in the charge, but surely if the original taker had a further knowledge of the accused receiving and concealing such property, then his testimony thereof should be received under proper instructions.

The motion will be overruled.