Kaufman v. State , 70 Tex. Crim. 438 ( 1913 )

Appellant was convicted for concealing stolen property and his punishment fixed at eight years in the penitentiary.

Most, if not all, of the questions attempted to be raised by him are by some sixty bills of exception. A large number of them were refused outright by the court, stating that no exceptions were made and no bill taken on the trial. Of course, we can not consider them.

The State claims that the others in no way comply with the rules long and well established so that this court can review the questions attempted to be raised by them. We will quote two of them in full, except their headings, which merely state the number, style of the cause and the court where pending. One is: "Be it remembered that upon the trial of the above entitled and numbered cause, the following proceedings were had:

"Fletcher Howard, a witness for the State, over the objection of the defendant, was permitted to testify that in the latter part of May, he, the witness, stole some eggs from the Santa Fe yards and delivered the same to the defendant herein, and that the defendant paid him $24 for same, to which defendant objected because same was evidence as to an extraneous and independent matter and was immaterial, irrelevant and hurtful to defendant, to which the defendant then and there excepted at the time, and now tenders this his bill of exceptions, and asks that the same be approved, signed and filed as a part of the record in this cause.

"Which is accordingly done, this ___ day of October, A.D. 1912, with this explanation. This matter was admitted as a part of the evidence of an extraneous theft committed under the contract with this witness and other negroes, and the goods delivered to the defendant, and was admitted as evidence of the `system.'"

Another is: "Be it remembered that upon the trial of the above entitled and numbered cause, the following proceedings were had:

"W.H. Black, a witness for the State, over the objection of the defendant, was permitted to testify that he had shipped 100 cases of eggs from Clifton, Texas, to Ben Ablon at Dallas, Texas, and that thereafter he came to Dallas, Texas, and went to Ben Ablon's cold storage house and there found several cases of the eggs that were packed like eggs he shipped, and that said several cases of eggs had the name Sam Kaufman on same; that at the time he went to Ben Ablon's cold storage house and there looked at said eggs, that he had two detectives of the City of Dallas with him, that he found two carloads of eggs in said storage house and that the cases he saw compared with the ones he packed and shipped from Clifton to Ben Ablon at Dallas, defendant objected because same was as to extraneous and independent matter in no way connected with the case on trial, because there was no testimony showing that the name `Sam Kaufman' was placed upon said egg cases by the defendant herein or that same was done with his knowledge or consent, and because same tended to prejudice the jury against the defendant, was irrelevant and immaterial, prejudicial and hurtful to defendant, to which the defendant then and there excepted at the time, and now tenders this his bill of exceptions and asks that the same be approved, signed and filed as a part of the record in this case.

"Which is accordingly done, this ___ day of _________, A.D. 1912, with this explanation. This was part of the evidence of extraneous crime, admitted by the court as evidence of `system.'"

These are but samples of all of the others. Some of them may have a little more in the way of objections, others less. Not one of them is in such condition as to require or authorize the court to consider them. Conger v. State, 68 Tex.Crim. Rep.; Ortiz v. State, 151 S.W. Rep., 1059; James v. State,63 Tex. Crim. 75.

Several other bills attempt to present that the county attorney was permitted to ask a certain claimed leading question. Each of these are as defective or more so than the others, but in no event do they present any error. Carter v. State, 59 Tex. Crim. 73.

One of the most important questions attempted to be raised by most of these bills is appellant's contention that proof of other like crimes, or crimes of the same nature, alleged to have been committed by appellant, were inadmissible for any purpose. The rule is that independent crimes by an accused are ordinarily inadmissible; that an accused can not be convicted of the crime for which he is on trial by showing that he committed at other times like crimes. But while this is the rule there are exceptions to it as well established as the rule itself. In fact, such exceptions might be considered, and are, also, rules as well established as the said rule above mentioned. These exceptions are stated by Mr. Wharton, one of the ablest law writers in this country, in his volume 1, section 31, on Criminal Evidence, as follows: (1) As a part of the res gestae; (2) to prove identity of person or of crime; (3) to prove scienter or guilty knowledge; (4) to prove intent; (5) to show motive; (6) to prove system; (7) to prove malice; (8) to rebut special defenses; (9) in various particular crimes.

In section 35 he says: "Evidence of collateral offenses often becomes relevant where it is necessary to prove scienter, or guilty knowledge, even though the reception of such evidence might establish a different and independent offense.

"In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution; and evidence of collateral offenses is admissible to establish such knowledge."

Again, in section 39, he says: "When the object is to show system, subsequent as well as prior collateral offenses can be put in evidence, and from such system identity or intent can often be shown. The question is one of induction, and the larger the number of consistent facts the more complete the induction is. The time of the collateral facts is immaterial, provided they are close enough together to indicate that they are a part of the system. In order to prove purpose and design, evidence of system is relevant; and in order to prove system, collateral and isolated offenses are admissible from which system may be inferred." These exceptions or rules are so well established, have been so often applied and held by this court, that we think it is unnecessary to collate them, but see Melton v. State,63 Tex. Crim. 362, where a few of the cases and authorities are cited. See also Hennessy v. State, 23 Texas Crim. App., 340; Mason v. State, 31 Tex.Crim. Rep.; Dawson v. State,32 Tex. Crim. 535; Pelton v. State, 60 Tex.Crim. Rep.; Long v. State, 39 Tex.Crim. Rep.. It is needless to cite the many other cases on these points.

The testimony of Fletcher Howard, who was an accomplice and a negro, was to the effect that he had worked for appellant and for appellant's brother and father, who run a mercantile establishment in Dallas for a number of years prior and up to the time the offense charged in this case, commencing work with him and them in 1905, or 1906, and had worked for them off and on from that time up to the time of the offense charged in this case or shortly prior thereto; that his work therein was that of a porter in their saloon and driving a delivery wagon for appellant and his said father and brother, or appellant and one or the other of them in their grocery business; that for the years 1909 to 1912, inclusive, he had a contract with appellant and with him and his brother and father to the effect that he and his associates were to steal goods from the railroad cars and wholesale houses in Dallas, and appellant and they would buy them from him and his associates. And this contract was carried out by both of these parties during these years. Then he detailed several such transactions during the year 1912, prior to the time this offense was charged to have been committed; that in every instance appellant bought these stolen goods from him and his associates and paid him and them therefor, knowing at the time that they were stolen and that all these transactions were carried out in consummation and in accordance with said trade between them. It is unnecessary to detail these various transactions. This accomplice, Howard, was corroborated amply and sufficiently by other witnesses and circumstances tending to show and showing the said several transactions as testified to by Howard. The theft by Howard and his associates of the goods charged to have been received by appellant in this case was clearly and unquestionably established, not only by Howard, the accomplice, but by many other witnesses and circumstances clearly detailed in the evidence. As to these particular goods in this case Howard testified that in the evening before these goods were stolen at night he and his associate, who was with him and helped steal them, were to deliver them in appellant's barn for him, situated close to his said store and residence in Dallas. They were so delivered and found in said barn immediately after their delivery therein. It was also shown that appellant kept his horses at this barn and that he had charge of said barn. The goods charged to have been stolen and received by appellant in this case consisted of a case of dry goods, — different bolts thereof containing, of one grade, 2747 yards, worth about 17 1/2 cents per yard; and 768 1/2 yards of another grade, worth about 22 1/2 cents per yard, and of a total valuation of over $500.

In this case the evidence was amply sufficient to show appellant's guilt of the offense with which he was charged. The evidence of the various other comparatively recent offenses was clearly admissible in this case to establish and it did establish a system of like crimes committed by appellant.

The court, in his charge, properly told the jury for what purpose they could consider the evidence showing or tending to show said other crimes and that appellant was not on trial for the commission of any of those offenses and they could not convict him therefor.

The court also charged that said Fletcher Howard was an accomplice and fully and properly required the corroboration of his testimony in accordance with law.

The testimony shows that the theft and delivery of the goods in this case occurred about 10 o'clock at night. Appellant also showed that he left his home and store, where said barn was in which said goods were delivered, about or shortly before 8 o'clock that night; that he went to a public speaking in the coliseum at the fair grounds, which was a mile and a half from said barn and said store and residence and remained at said public speaking until after 10 o'clock and did not return to his said home until 11:30 or later that night. In other words, he showed that he was not at said barn where said goods were placed at the time they were placed there, but at another and a different place. The court did not charge on alibi. He was requested to charge on that subject. The court gave this charge on the subject of receiving stolen property:

"I will define to you now what the law means by receiving property acquired by theft. You are instructed that if you believe from the evidence beyond a reasonable doubt that the property described in the indictment was obtained from W.D. Stetler by Amos Parker and Fletcher Howard, under circumstances and in such manner that the acquisition thereof comes within the meaning of the term theft, and you further find and believe from the evidence beyond a reasonable doubt that prior to the time that the same was so taken by the said Amos Parker and Fletcher Howard, a contract and agreement had been entered into by Fletcher Howard and Amos Parker on the one hand, and Sam Kaufman, or Sam Kaufman and others on the other hand, that the said Parker and Howard should steal the said property and deliver the same on the premises of the said Sam Kaufman, or in the barn under the control and management of the said Sam Kaufman, or under control of Sam Kaufman and others, and you further find and believe beyond a reasonable doubt that in pursuance of said agreement and contract with the said Sam Kaufman, if any, the said property was so fraudulently taken from the said W.D. Stetler and so delivered by the said Amos Parker and Fletcher Howard in the said barn or premises, owned and under the control and management of said Sam Kaufman, or under the control of Sam Kaufman and others, then this would constitute the receiving of said property by said Sam Kaufman."

Appellant urges that the court erred in refusing to charge on alibi and in giving the last charge quoted just above.

Mr. Bishop, in his New Criminal Law, volume 2, section 1139, in treating of the act of receiving stolen goods, says: "The leading doctrine here is that the goods must come under the control of the receiver; yet the control need not be manual. For instance, — if they are in the hands of a person whom he can command in respect of them, they may be deemed to have been received. And one who allowed a trunk of stolen goods to be sent on board a vessel in which he had taken passage, was held to have received them."

In 34 Cyc., page 517, in treating of the receiving, it is said: "To be convicted of receiving stolen goods, defendant must have had such control of the property as amounts to constructive possession, at least; but the possession need not be actual and corporeal. It may be through the instrumentality of another person, and the offender need not have seen the goods."

In Huggins v. State, 41 Ala. 393, which was a conviction for receiving stolen property, it is held:

"The charge given at the instance of the solicitor, to the effect that the defendant might commit the offense without seeing the property, was obviously correct. The defendant could certainly be guilty of committing the felony charged, through the instrumentality of others, without performing the act of receiving or buying in person, or actually seeing the property."

In the case of State v. Stroud, 95 N.C. 626, it is held: "The court charged, in substance, that if the meat after being stolen, was directed by the defendant to be carried to a certain place, he at the time knowing that it had been stolen, it was a receiving in the eye of the law. To constitute the criminal offence of receiving, it is not necessary that the goods should be traced to the actual personal possession of the person charged with receiving. It would certainly make him a receiver in contemplation of law, if the stolen property was received by his servant or agent, acting under his directions, he knowing at the time of giving the orders that it was stolen, for qui facit peralium facit per se. It is the same as if he had done it himself."

We are clearly of the opinion that the evidence in this case justified the jury to believe that appellant knew that these goods were stolen by Howard and his associates and that he directed that they should be delivered to him by placing them in his barn, which was done. This "was a receiving by him in the eye of the law." It was not necessary under the law that he should personally be present, nor manually receive the property under the circumstances of this case. The charge of the court above complained of was correct and no charge on alibi should have been given. The court in submitting the case specifically required the jury to believe beyond a reasonable doubt that the appellant received the goods knowing that they were stolen before they could convict him.

The court did not err in permitting the county attorney to argue that appellant had not placed on the stand and had them testify, any of his several relatives who were unquestionably shown to be present at the time of the delivery of said goods in said barn and when they were found and taken therefrom by the officers. Sweeney v. State, 65 Tex.Crim. Rep., 146 S.W. Rep., 883.

We have carefully considered all of appellant's claimed errors and have discussed the material ones. There being no reversible error, the judgment will be affirmed.

Affirmed.

ON REHEARING. June 18, 1913.