Bunch v. State ( 1933 )

LATTIMORE, Judge.

Conviction for receiving and concealing stolen property; punishment, two years in the penitentiary.

Being called on to plead to an indictment containing two counts, the first charging theft of a watch worth $125.00, and the second charging the receiving and concealing of said watch after it had been stolen by a boy, — shown by the testimony to have been twelve years old at the time, — appellant, a grown man, represented by counsel, elected to and did enter his plea of guilty to the offense charged in count No. 2, after which the court gave to the jury his charge, instructing them fully as under such plea of guilty to find appellant guilty of receiving and concealing said stolen property, and to fix his punishment, which they did, giving him the lowest penalty of two years. Appellant also asked for a suspended sentence which was refused by the jury’s verdict. He then filed a motion for new trial setting up that the testimony showed him guilty of theft of said watch, and that hence he could not be adjudged guilty of receiving and concealing same. The testimony referred to was that of the child mentioned whose testimony at most was that of an accomplice, and would not in any event be held sufficient to establish guilt of a particular crime unless otherwise corroborated. No testimony supported any theory that appellant had no guilty connection with the taking of said watch, or that he was innocent in the transaction. Hence we see no application of those cases which hold that if the statutory command that testimony be introduced upon the hearing of a plea of guilty in a felony case is disregarded; or if the testimony introduced establishes the innocence of the accused, thenx the judgment of guilty will not be allowed to stand. Crumbley v. State, 103 Texas Crim. Rep., 391, and Connor v. State, 93 Texas Crim. Rep., 255, are cited. In the latter case we said the verdict should be set aside where no evidence was adduced, or when the evidence “demonstrated the innocence of the accused.” This holding grew out of the attitude of this court in expressing its unwillingness to let an innocent man suffer in a case where through youth, ignorance or other reason deemed sufficient it appeared that the accused was induced to plead guilty upon facts making clear the proposition that he was innocent. We have here no such case. We know of none in which the guilt of the accused is beyond dispute, and in which, admitting guilt of a specific offense, the accused by a species of legal legerdemain seeks to have this court hold, in effect, that he has been acquitted of theft because the count charging that offense in the indictment was abandoned, and therefore upon another trial hereafter had for that offense he could not be convicted; so that if we hold that he is not guilty of receiving and concealing the alleged stolen property because the testimony of the accomplice tends to make out a case of theft, and hence we reverse the case for this reason, appellant will go scot free.

It appearing that appellant under the above circumstances specifically pleaded guilty to the offense charged in the second count, and there being nothing in the record showing that he was ignorant or misled; also that there was no objection to the testimony of said boy, or any other testimony; no exception to the charge of the court submitting to the jury guilt predicated on the second count, and there is nothing demonstrating appellant’s innocence, the judgment will be affirmed.

Affirmed.