Holt v. State , 144 Tex. Crim. 62 ( 1942 )

In the distribution of cases after submission this case went to the desk of Judge Davidson, one of the Commissioners to the Court of Criminal Appeals. He reached the conclusion that the evidence was not sufficient to support the conviction of appellant as a principal, and prepared the following opinion. My brethren have reached a different conclusion from that arrived at by Judge Davidson. His opinion is as follows:

"The conviction was for felony theft, with punishment assessed at life in the penitentiary as an habitual criminal. (Art. 63, P. C.)

"This case presents another version of that old confidence game sometimes referred as 'pigeon dropping' or 'ring dropping.' (Wharton's Crim. Law, Sec. 2136.)

"It was the State's theory that appellant and three others, acting together, consummated the theft of twenty thousand dollars by false pretext from C. E. Goolsbee and wife.

"Sometime the last week in January, 1941, Holt, the appellant, appeared at the store operated by Mr. Goolsbee in the town of Warren, about forty-two miles from Beaumont, and approached him relative to leasing some of his land for oil and gas purposes. He claimed to be representing a Mr. Blackwell, who was residing at a hotel in Beaumont. Goolsbee and his wife owned considerable real estate. At this time, only a general discussion between them occurred. The next day, or the day after, the same routine was carried out; then a few days prior to February 7th, 1941, Holt appeared at the store, this time accompanied by conspirator Ramey, whom he introduced, and the matter of the lease was pressed, Ramey taking up the burden. At this time a price for the lease was agreed upon, all contingent, however, upon Blackwell's approval. The following day they returned and reported that Blackwell would not pay the price they had agreed upon, and suggested that Mr. and Mrs. Goolsbee accompany them to Beaumont to see Blackwell, looking to an agreement as to the price. It was finally agreed that Mr. and Mrs. Goolsbee would go to Beaumont for that purpose, and February 7th, 1941, was set as the date. Early on the morning of that day Ramey appeared to carry Mr. and Mrs. Goolsbee in his car to Beaumont; they arrived there at about nine o'clock in the morning and parked the car near the hotel; they went into the lobby, where Holt, who was in the lobby, advised them that Blackwell was busy and could not see them until later. The three (Mr. and Mrs. Goolsbee and Ramey) decided to return and to wait in the car. The appellant now appears to pass, temporarily, out of the picture. Upon the three returning to the car, Ramey discovered an envelope lying under the car, which he picked up. The envelope contained a check for five hundred dollars and papers showing extensive stock market transactions. About this time Thravanow appeared on the scene. He acted as though he were looking for something. Mrs. Goolsbee inquired of him if he had lost something, and he replied that he had lost an envelope containing papers very valuable to him. He, of course, was able to describe with much detail what was in the envelope, whereupon Ramey gave it to him. Thavanow was very grateful to them, saying that if he had not found the envelope he would have been ruined. He proffered to Ramey a fifty dollar bill as a reward, which was refused. As Thavanow was about to leave Ramey suggested that inasmuch as it appeared that he was well acquainted with stock market activities he might give them a tip on the market; and, as an act of appreciation for the great favor they had done him, he agreed to do so, and gave Ramey a five hundred dollar bill, instructing him to go to the stock exchange in the hotel and buy certain stocks, which he described in a purchase order that he gave him. Accordingly Ramey left, leaving Thavanow there at the car with Mr. and Mrs. Goolsbee. A short time later Ramey returned, reporting that he had executed the order as directed. After a short period of time Thavanow suggested to Ramey that he go back and see if the stock had been sold. Ramey left and soon returned, exhibiting one thousand dollars, which he claimed to have made in the deal. He also gave a glowing account of the stock exchange and of the vast amount of money he had seen while there. The five hundred dollars profit was offered to be divided among the four. About this time Thavanow said he was to buy thirty thousand dollars worth of stock on the exchange for his company. He wrote out an order to that effect which he gave to Ramey, with instructions to execute same, and also cautioned him not to use the one thousand dollars they had. Ramey left, was gone for a time, and returned, saying that he had bought thirty-one thousand dollars worth of stock. Of course, Thavanow reprimanded him severely for using the one thousand dollars. All parties remained there at the car waiting for time to elapse for the transaction to be completed on the stock exchange. While thus waiting Holt reappeared on the scene and reported to Goolsbee that Blackwell had agreed to take the oil and gas lease, and, with this, passed on. After this, Thavanow suggested that Ramey go and see what had happened on the stock exchange. After being gone for some time, Ramey returned; with him came Harris, who purported to be the representative of the stock exchange. He and Ramey had with them what appeared to the victims to be a large amount of money, which they deposited in or tossed into the car. Harris advised Thavanow that he had made this money and that it amounted to seventy-seven thousand, five hundred dollars. Harris exhibited a ticket or order showing said sum as the amount due and to be paid, as also a receipt, which he asked Thavanow to sign. Upon examining the ticket Harris discovered that the transaction or purchase had been handled in the name of the firm or partnership which Thavanow represented. Harris then required that, before delivering the money he would have to have the signature of the other partner or member of the firm. Thavanow explained that his partner was not in town and that he could not get his signature. Harris expressed regret, but advised that the signature would be required before delivery of the money, and, with that, began to pick up and to take charge of the money which had been placed in the car. Thavanow inquired if the matter could be handled in any other manner whereby he could get the money. It was agreed that, although it would be irregular, yet if Thavanow could raise Thirty thousand dollars in cash, Harris would turn over the seventy-seven thousand, five hundred dollars. With this Harris said that he would return to the exchange to await the raising of the money. Thavanow then suggested that he could get the money by wiring east for it; so he left for that purpose, leaving Ramey at the car with the victims. He later returned, saying that he had raised ten thousand dollars, and that he was going to wire to California. He later reported that he could get no help from that place. Ramey then suggested that he could raise five thousand dollars by wiring to Shreveport, but that with this they would still be fifteen thousand dollars short of the thirty thousand dollars required. Mr. Goolsbee was then propositioned if he could get that amount, and he replied that he could. Ramey then said that it would take some time to get his five thousand dollars; whereupon Mr. Goolsbee said he could supply the twenty thousand dollars. It was then agreed that if Mr. Goolsbee would put up that amount he would get twenty-seven thousand, five hundred dollars profit, or a total of forty-seven thousand, five hundred dollars, same being his twenty thousand dollars and the profit. This Goolsbee agreed to do, and he and Mrs. Goolsbee were driven to two banks in Beaumont where they drew from each bank ten thousand dollars in currency. One of the banks paid the money in bills of one thousand dollars and five hundred dollars denomination and retained a record of the serial numbers of such bills. All this time Ramey and Thavanow were outside the banks, waiting for them. Goolsbee and wife, with twenty thousand dollars, were carried to the hotel and into a room which Thavanow claimed was his. This was at something like one or two o'clock in the afternoon. After getting into the room Ramey left and returned with Harris, the pay-off man. The twenty thousand dollars was given to him and he gave the order for the seventy-seven thousand, five hundred dollars on the stock exchange to Ramey, telling him to come on up to the exchange and get the money. Ramey left the room with Harris while Thavanow remained in the room with the victims. Ramey soon returned, saying that the exchange had closed; that the money was locked in the vault, and that they could not get the money until the next day. It was then agreed between Mr. and Mrs. Goolsbee, Ramey and Thavanow that they would meet at the hotel the next morning to get the money. The order for the money was to be placed in a sealed envelop in a lock box, at the hotel, overnight. The key to the box was to be retained by Mrs. Goolsbee. The order was placed in the envelope, with Thavanow in possession thereof, as they left the room. They went to the hotel clerk's desk and an envelope was placed in the lock box provided by the hotel, and the key delivered to Mrs. Goolsbee. A taxicab was called and Mr. and Mrs. Goolsbee were sent to their home. The next moning Mr. and Mrs. Goolsbee appeared at the hotel as agreed, but no trace of the others could be found. After waiting for a time the box was opened and the envelope was found to contain only a blank piece of paper. Thus this elderly couple was defrauded of their money. It seems incredible that such a thing could happen; yet that it what this record reveals did happen.

"Mr. Goolsbee was positive in his statement that at the time the money was delivered to the thieves it was under the agreement that the twenty thousand dollars was to be returned to him, together with the profit.

"There was no stock exchange in the hotel, nor were there any stock transactions. The representations relative thereto were false.

"Under these facts a case of theft by false pretext is presented. Gordon v. State, 214 S.W. 980, 85 Tex.Crim. R.; Hoovel v. State, 69 S.W.2d 104; 125 Tex.Crim. R.; Nichols v. State, 109 S.W.2d 1057, 133 Tex.Crim. R.; Maxwell v. State, 115 S.W.2d 939, 134 Tex.Crim. R.; Black, et al v. State, 149 S.W.2d 968.

"In addition to the foregoing facts the State, to further connect appellant Holt with the crime, showed the following: About a week prior to the crime Ramey and Thavanow rented a room in a private home in Beaumont, which they vacated on the afternoon the crime was completed. Appellant visited them at their room during their stay there, and was seen on occasions to leave the house in their company.

"On the night of February 10, 1941, or three days after the theft, the appellant and his wife while together were arrested in Houston, Texas. Upon appellant's person were found two twenty dollar bills and hidden in the underclothing of the wife was something over two thousand dollars, of which there were two five hundred dollars bills, positively identified by serial numbers as a part of the stolen money. There was introduced in evidence a receipt bearing date February 7, 1941, the day of the theft, showing that on that day appellant had paid to an automobile firm in Houston, Texas, five hundred dollars on his car.

"Upon cross examination Goolsbee testified that appellant was not present when the money was delivered; that the last time he saw appellant was when he passed by the car and reported to him that the terms for the oil and gas lease had been agreed upon; that appellant never at any time mentioned to him any stock transaction, nor was he present when such transaction was being discussed by the others.

"Appellant did not testify as a witness in his own behalf, nor did he offer any affirmative defense.

"The sufficiency of the evidence to support the conviction is challenged.

"The primary offense of which appellant stands convicted is that of theft. This is not a case of, nor is he charged with the substantive crime of, conspiracy to commit theft, nor as an accomplice to the commission of that crime by others.

"Not being actually present when the theft was finally consummated and the money delivered, appellant's guilt is, therefore, made to depend upon an application of the law of principals. Under our statutes, there exist six different definitions by which one may be a principal to the commission of a felony by another. Middleton v. State, 217 S.W. 1046,86 Tex. Crim. 307; Hardie v. State, 144 S.W.2d 571,140 Tex. Crim. 368. As there pointed out, only two of these require the presence of the co-principal with the one actually committing the unlawful act. The four definitions not requiring presence of the accused are stated as follows:

" 'When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.'

" 'When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.'

" 'When A. actually commits the offense, but, at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.'

" 'When A employs an innocent agent, or by indirect means causes the injury, or bring about the commission of the offense.'

In theft cases, a fifth definition is recognized where one may be a principal to the commission of a felony theft by another, although not present when the theft is committed, and that is:

"When A., being a party to a prior conspiracy to commit theft, and his part in the conspiracy is to make disposition of the property when stolen, and the proceeds of which are to be divided among the conspirators. Smith v. State, 17 S.W. 552, 21 Tex. Cr. App. 107; Kolb v. State, 228 S.W. 210, 88 Tex. Crim. 593; Smith v. State, 17 S.W. 558, 21 Tex. Cr. App. 133; Byrd v. State, 117 Tex.Crim. R., 38 S.W.2d 332; Burow v. State,210 S.W. 805, 85 Tex.Crim. R.; McInnis v. State,122 Tex. Crim. 128, 54 S.W.2d 96; Coy v. State, 100 S.W.2d 1016; 11 Tex.Crim. R.; Miller v. State, 105 S.W.2d 1097,133 Tex. Crim. 53; Thornton v. State, 127 S.W.2d 197,136 Tex. Crim. 560.

"These definitions but furnish specific instances by which the basic fact necessary to constitute one a principal to the commission of a crime by another may be established, which is the acting together of the parties in furtherance of a common design in committing the offense charged. To meet this burden the State relied upon the circumstances shown. The trial court so recognized and instructed the jury upon the law of circumstantial evidence.

"It may be conceded that the facts established the existence of a conspiracy to commit the theft, and that appellant was a party thereto. But the mere fact that a conspiracy is shown does not make all parties thereto principals to the crime committed as the result of, and as contemplated by the conspiracy. Branch's P. C., Sec. 700; Burow v. State, supra; Anzualda v. State, 27 S.W.2d 231, 115 Tex.Crim. R..

"So, for the State's case to be sufficient to authorize this conviction, there must be some testimony or circumstance sufficient to show that, at the time the offense was committed by the other conspirators appellant was then doing something in furtherance of the common design. We are unable to find in this record any fact or circumstance sufficient to show. Moreover, under the facts here rpesented appellant could have been a party to the conspiracy, and in possession of some of the stolen property recently after the theft, yet his absence at the time the offense was committed or was finally consummated would tend as strongly to show that he was an accomplice to the theft as it does that he was a principal thereto. Such fact would constitute such an outstanding hypothesis as would be required to be disproved by the State in order to sustain the conviction upon circumstantial evidence. To be sufficient to sustain this conviction, then, the facts must be sufficient to show not only that appellant was guilty as a principal to the theft, but also must disprove the fact that he was an accomplice to the commission of the offense by others.

"One cannot be both a principal and an accomplice to the commission of the same crime.

"The facts being insufficient to authorize the conviction, the judgment is reversed and the cause remanded."

I adopt the foregoing opinion as a dissenting opinion, with the following additional observations.

It must be remembered that appellant was charged as a principal in the theft by false pretext of twenty thousand dollars from C. E. Goolsbee and Ella Goolsbee. It is well recognized that one indicted as a principal may not be convicted under said indictment as an accomplice; neither may one indicted as an accomplice be convicted as a principal under said indictment. Article 70 of the Penal Code defines an accomplice as follows:

"An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or

"Who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or,

"Who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or

"Who prepares arms or aid of any kind, prior to the commission of an offense, for the purpose of assisting the principal in the execution of the same."

Opinions of this court have many times announced that an "accomplice" is one whose acts are all performed before the commission of the offense, and who is not present when it is committed. To constitute a person a principal in a felony, he must at the time the act is being done, if not personally present, be then doing some act in furtherance of the common design. See Branch's Ann. Tex. P. C., Sec. 700, and cases there cited.

As I understand the facts in the present case the authorities cited by them do not support my brethren in holding appellant to have been a principal, but rather illustrate the general rule stated above. In all of those cases the parties held to be principals, if not present when the crime was committed, were at that very time doing some act in furtherance of its commission.

For the purpose of this opinion it will be conceded here that appellant had conspired with his confederates to commit the crime of theft by false pretext from the Goolsbees; that everything he did was done in furtherance of that design; that his connection with and representations to the Goolsbees regarding the purposed lease of land for oil development were all a part of the scheme and devices looking to the ultimate securing of the money from Goolsbee. My brethren properly state that no offense of theft would have been consummated unless appellant's confederates had obtained the money. Then it follows that the offense of theft was committed when they received the money from Goolsbee, and not before. All the devices, schemes and false representations found in the record might have supported a prosecution for the substantive crime of conspiracy to steal, even though no money had been obtained, but no crime of theft occurred until appellant's confederates received the money from Goolsbee. Where was appellant when the money was released by Goolsbee? This record does not answer the question. Mr. Goolsbee testified that appellant came to the car and said Blackwell would take the lease, and further said:

"* * * I don't know which way Holt went from the car. No I don't know whether he went East, West or North. I did not see Holt that day any more. I didn't see Holt any more after that until I saw him in jail."

Upon being recalled for further examination Mr. Goolsbee testified that after appellant made the above statement at the car "Then he walked on down the street." This was some time before Goolsbee even got the money out of the bank. Mr. Goolsbee does not pretend to know where appellant went, or where he was or what he was doing when the money was later turned over to Harris, Ramey and Thavanow. No other witness in this record pretends to place appellant present at said time, nor to intimate that he was doing anything then in furtherance of the theft. He had done his part apparently and had disappeared. Notwithstanding this, my brethren say in their opinion that:

"He (appellant) was nearby when the money was actually extracted from Goolsbee; was by his act and conduct at the very time making false representations to keep them in position so that his associates could extract the money. He was playing his part at the very time it was done as much so as if he had been sitting in the car with them."

In the absence of any witness speaking as to the foregoing recitals of what appellant was doing I must confess my bewilderment as to how my brethren discovered it.

While committing themselves to the correct proposition that all parties to a conspiracy are not necessarily principals in the commission of the contemplated crime, yet the conclusion reached by my brethren, and certain statements found in their opinion to the effect that appellant was personally present upon various occasions and did certain things, etc., rather leads one to suspect that confusion has arisen over one who may be a principal in the substantive crime of conspiracy, and yet not a principal in the crime which is the consummation of the conspiracy. This is reflected by the rather startling announcement that the "time" of the crime was from the beginning in Tyler County until the booty was divided and that the "place" of the crime was in both Tyler and Jefferson Counties.

It is only by reason of the confusion which is surely in the minds of my brethren that would permit them to hold the court's instruction on alibi to be not reversible. The charge is as follows:

"If you have a reasonable doubt as to the presence of the defendant at the time and place of the commission of an offense, if any was committed, you will acquit him, unless you further believe and find that he acted together with others, if there were others, with common design and intent to commit the offense as alleged in the indictment."

The charge as written would indicate that if appellant was a party to a conspiracy to steal Goolsbee's money he would be guilty as a principal under any circumstances. It may be admitted that the evidence shows that appellant did act together with others with a common design and intent to ultimately get Mr. Goolsbee's money by theft by false pretext. The charge tells the jury if appellant was not present when the theft occurred to acquit him unless he acted with others in such common design. The sense of the charge is, and the jury could have understood it in no other way than if he was a party to a conspiracy to steal Goolsbee's money he should be convicted as a principal, regardless of whether he was present when it was taken, and regardless of where he was, or what he was doing, or whether he was doing anything in furtherance of the theft when it was accomplished. This never was the law, and is not the law now. The charge is so patently vicious that it condemns itself.

If appellant had been charged as an accomplice to theft by false pretext and had been convicted as such accomplice, and was before this court under the present record contending that the evidence failed to support a finding that he was an accomplice, it would be more than difficult to sustain such a contention, yet that would be the predicament of my brethren in view of their holding that appellant is a principal.

For the reasons given in the opinion prepared by Judge Davidson, and supplemented by the foregoing additional observations, I respectfully record my dissent. The judgment should be reversed.

ON MOTION FOR REHEARING.