Boatright v. State , 121 Tex. Crim. 578 ( 1932 )

Conviction for theft; punishment, five years in the penitentiary.

Mr. McCardell was manager of a store which appears to have been the property of nonresidents, and as such manager McCardell had the care, management, and control of the property located in the various rooms which made up the store building. In his absence the assistant manager, a Mr. Phillips, had charge. The alleged theft took place about 2:30 a. m. on Monday night, October 14, 1929. McCardell had been in Houston, but returned to Camden, where the store was located, about 9 o'clock Monday night. The night watchman testified that in making his rounds about 2:30 a. m. he observed a light in the store, and went to investigate. When he entered the building, he observed two negroes, and saw them run. He observed the cap and clothing of one of them, and identified appellant when he was brought back to the store about 4 a. m. that morning. It was shown that from various departments of said store merchandise aggregating in value something over $500 had been piled up in the warehouse room of said store where it was found and listed by the employees in said store. Asportation was sufficiently shown.

After being arrested and warned, appellant made a written confession admitting that he was in said store at the time in question, and that he had piled up goods in the warehouse room preparatory to their removal in a car belonging to a confederate, appellant stating in his confession that he had piled up about $40 worth of the goods at said place. He further stated that he was in the store on the day in question and purposely left a door in same unlocked, that he and another negro went back to the store that night for the purpose of stealing the property, and that they would have removed it but for being run off by the nightwatchman. Appellant did not testify, nor was there any evidence introduced in his behalf raising any question as to the voluntary character of his confession, or of the fact that he entered the building for the purpose of stealing the property which was removed from its accustomed place and piled up in the warehouse room. The facts above stated appear without dispute in testimony.

Appellant requested fourteen special charges, one asking a peremptory charge to acquit; nine seeking to have submitted to the jury the voluntary character of the confession and the guilt of appellant predicated thereon; three trying to have the jury told that they could not convict upon the confession of appellant unless corroborated, and one or two upon the question of the ownership and possession of the alleged stolen property, apparently on the assumption that, because Phillips closed the doors of the store when he left that afternoon, the property would not be that of McCardell who came back to town before it was stolen.

Complaint of the refusal of some of these special charges is discussed in appellant's brief. Without dealing with them individually or at length, we think it enough to say that, McCardell being manager of the store and in possession of the property therein when in town, having returned to said town and being there at the time of the theft, it was proper to allege in the indictment that he was the owner of the property, and to support it by proof of his presence in town, and there being nothing controverting such facts, no issue would be necessary of submission to the jury regarding such ownership or possession.

So also we find in the record, in addition to appellant's confession, that the nightwatchman identified appellant as being in the building at the time he went there at 2:30 a. m., and that appellant ran away. Further the evidence showed that appellant wore tennis shoes with rubber soles when at the store the afternoon before the theft; that, when he was brought back to the store after the theft was discovered, his knees and legs down to his feet were muddy with black mud, and that deep tracks were found in the soft black mud near the store, which appeared to have been made by some one wearing a rubber soled tennis shoe. The rule in this state is that, if the offense be proven aliunde, the confession of the accused is sufficient to convict. Attaway v. State, 35 Tex.Crim. Rep.,34 S.W. 112; Duncan v. State, 109 Tex.Crim. Rep.,7 S.W.2d 79. If the facts in this case, aside from the confession, showed a theft, appellant's confession would therefore he sufficient, but, if the law required corroboration in such case, it appears abundantly in this record, and there was no necessity for giving those special charges seeking to have the jury told that they could not convict unless there was corroborating evidence.

In regard to appellant's confession, and his effort to have the voluntary character thereof submitted, there was not a particle of testimony controverting the state's proof that proper warning was given, or raising any issue as to the voluntary character of such confession. In such case there existed no reason for submitting the issue of such voluntary character to the jury, and the special charges so requesting were properly refused. Thompson v. State, 90 Tex. Crim. 15,234 S.W. 401; Crowley v. State, 92 Tex.Crim. Rep.,242 S.W. 472; Johnson v. State, 97 Tex.Crim. Rep.,263 S.W. 924; Harden v. State, 85 Tex.Crim. Rep.,211 S.W. 233, 4 A. L. R., 1308. The question of the legality of the manner of selecting the jury was settled adversely to appellant's contention in Randolph v. State, 117 Tex. Crim. 80,36 S.W.2d 484.

Appellant excepted to the charge of the court for many reasons, each of which exceptions has been carefully examined and the charge scrutinized in the light of such exceptions. We are of opinion that the charge was an admirable presentation of the law applicable, and that it was not subject to any of the criticisms leveled at same.

The bill of exception complaining of the action of the court in taking this case up out of its numerical order and putting it to trial before other cases against this accused, recites that the court heard evidence on the point involved. We find no evidence brought forward by the bill of exception or in any other way. In such case we must uphold the action of the court. In addition we find a qualification upon this bill of exception which makes apparent the correctness of the court's action. We are not able to agree to the soundness of the views set forth in appellant's able brief.

Finding no error in the record, the judgment will be affirmed.

Affirmed.

ON APPELLANT'S MOTION FOR REHEARING.