Younger v. State , 136 Tex. Crim. 270 ( 1939 )

Appellant, in his motion for a rehearing, contends that we erred in our original opinion in holding the evidence sufficient to show that he and his co-defendants took property of the value of $50.00 or more at any one time. He further contends that the state proved that some of the property taken was not described in the indictment, and therefore could not be a basis for his conviction of a felony.

It was charged in the indictment that appellant, Kajie Wilson, Fred Jackson, Sylvan Bolden, Irving Wilson and Willie Pullen, on or about the 16th day of February, 1938, in Jefferson County, unlawfully and fraudulently took from the possession of Willie Balston, certain corporeal personal property, to-wit:

Two (2) suits of clothes of the value of ............ $50.00 One pair of pants of the value of ................... 10.00 One pair of pants of the value of ................... 5.00 One dozen shirts of the value of .................... 24.00 One pistol of the value of .......................... 35.00 One handbag of the value of ......................... 15.00 One tire and wheel of the value of .................. 25.00

One cigarette lighter and holder of the value of $5.00 other property included boots, shoes, sacks and pajamas.

Willie Balston testified that this property was taken after 5 p. m. February 16, 1938. That he was familiar with and knew the market value of the property in question at the time and place it was taken; that the market value of the two suits of clothes was $50.00; the cigarette lighter, $5.00; the pants $12.00; the handbag $25.00; the pistol $35.00; Mr. Wingate testified that he knew the market value of the pistol to be over $30.00. Appellant testified that they made about four trips into the building. That they would bring out some of the property on each trip and stack it under the warehouse and then go back and get some more. That they took it from under the warehouse all at one time. He did not specify what property they brought out each time they entered, nor what its value was.

Therefore under all the evidence, the amount of property taken at one time and its value was a question of fact to be determined by the jury. But even if the parties entered four times and each time stacked the stolen property under the warehouse and went back for more, it would still constitute one continuous transaction. Moreover the court, by an appropriate charge, instructed the jury that unless they found from the evidence beyond a reasonable doubt that defendant and those with whom he acted, if any, did not take goods of the value of $50.00 or more at any one time, to acquit him of felony theft. See McKnight v. State, 134 Tex.Crim. Rep.; Wilson v. State, 158 S.W. 516; Sec. 2431 Branch's Ann. P. C., p. 1315 subdivision 3.

Appellant also insists that we erred in holding that the trial court did not err in declining to compel the county attorney, upon appellant's request, to produce and deliver to him a voluntary written confession made by him to the county attorney. A similar question was before this court in the cases of St. Clair v. State, 104 Tex.Crim. Rep. and Avery v. State,121 S.W.2d 992, and decided adversely to appellant's contention. It appears from the record that appellant had made a verbal confession to Mr. Wingate and took him to the various places where he had disposed of the stolen property, and much of it was recovered at these places. Thereafter he made the alleged written confession to the county attorney, which the state sought to introduce in evidence, but upon appellant's objection thereto, the county attorney declined to introduce it. The verbal confession had been introduced already, and there was no need for the introduction of the subsequent written confession. It seems that the subsequent written confession would have been introduced had appellant not objected thereto.

We can see no good reason for receding from our original opinion in this case. The motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.