Hampton v. State ( 1939 )

In his motion for rehearing appellant stresses the contention that the record fails to show his connection with the automobile alleged to have been stolen from Mr. Dollar; in other words, that the evidence fails to identify the car which it is claimed appellant wrecked as the alleged stolen car. This has given us much concern.

It is apparent that the contention now urged is not an afterthought for appellant presented a motion for an instructed verdict of acquittal for the reason as stated in the motion "that the State has wholly failed to connect the defendant with the taking of the automobile belonging to Mr. H. G. Dollar." Mr. Dollar was a police officer of the City of Fort Worth. On the night of the 10th of September, 1938, at about eleven o'clock he parked his car at the corner of Tenth and Main Streets, and went about his duty patrolling his territory. About twelve o'clock he discovered that his car was gone and reported it to headquarters. He testified that about an hour after he reported its loss he received information "about the location of my car * * * but did not go to the place where the car was reported to have been found." That same night between twelve and one o'clock he saw and identified his car at Parrent Garage, a place where the police stored cars which had been taken in charge by them. The car had been badly wrecked, and had scratches on the right side and top as if it had been in the wire. The car Mr. Dollar described as his was a "Ford '34 Coach, V-8," but he did not give the license number it bore. Mr. Lockard and Mr. McQueen, police officers, were cruising in a police car and at the corner of Lancaster Avenue and Riverside Drive they noticed a car being operated in such manner as led them to believe the driver was intoxicated; they gave chase to the car for about five or six miles until the car was run into a fence and badly torn up. The party who was operating the car ran away and was not arrested until about an hour later. At the time the officers started chasing the car they had no information that Mr. Dollar's car had been stolen, but received such information over the radio in a police car after the car they had been chasing had been wrecked, and while they were at the scene of the wreck. It is apparent from the record that the effort of the State was directed toward identifying appellant as the driver of the wrecked car, which perhaps accounts for the dearth of proof on the point that the wrecked car was the stolen Dollar car, evidence of which would not seem difficult to obtain.

The only identifying description of the wrecked car was that it was a V-8 Ford Coach. It does not appear from the record before us how or by whom the car recovered at the Parrent Garage was taken there. No one testified to having received it there, and no one testified to having taken it there from the scene of the wreck, and no witness even gives the license number of the car.

Police officer Lockard testified on direct examination that when he and his partner first saw appellant on the night in question that: "He was headed toward Mansfield in this carbelonging to Mr. Dollar." It escaped our attention that such evidence was without probative value in establishing identity or ownership of the car in view of the fact that the same witness also testified as follows: "I didn't know that auto of Mr. Dollar's. I do not know what the license number was, I don't recall just what the license number was on that * * * I didn't know that there had been an auto unlawfully taken in Fort Worth at that time, especially the car we were trailing. As a matter of fact, I believe we were trailing a man that was slightly intoxicated."

Officer Bartlett arrested appellant about an hour after the wreck and brought him back to the wrecked car. Other officers at the scene of the wreck had received a police broadcast that Mr. Dollar's car had been stolen. Officer Bartlett, referring to the wrecked car, testified: "If that car was stolen I didn't know when it was stolen, I didn't know that. I didn't know who that car belonged to."

So far as we know there has been no variance from the principle stated in Scoggins v. State, 92 Tex.Crim. R.,244 S.W. 535, that: "In order to warrant a conviction for theft where possession of recently stolen property is relied on, the property in possession of the party accused, or which had been in his possession, must be identified as that stolen. It is true this may be done by positive testimony or by proof of circumstances; when the latter is resorted to it must measure up to the standard which the law requires. See Branch's Ann. Tex. P. C. p. 1342, Sec. 2482." See also Fountain v. State, 90 Tex. Cr. 474, 241 S.W. 389. It seems clear that no positive testimony on the question of identity of the car was placed in the record. In order to hold the proof by circumstances sufficient it would be necessary for us to indulge the presumption that because Mr. Dollar's car had been wrecked, and had scratches on the top and side which looked like "wire scratches," it therefore must have been the same car which had been wrecked by appellant, and this, in face of the fact that the record fails to show that any one ever moved the wrecked car from the place of the wreck.

After a most careful re-examination of the record we are constrained to grant appellant's motion for rehearing, set aside the judgment of affirmance, and now reverse the judgment of conviction, and remand the cause for a new trial, and it is so ordered.