Watkins v. State , 84 Tex. Crim. 412 ( 1919 )

PRENDERGAST, Judge.

Appellant was convicted of petty theft and his punishment assessed at thirty days in jail.

The stolen "property was about 200 pounds of seed cotton of the value of about $19, the property of Buck Wallace.

The facts show that about October 20, 1917, said Wallace had appellant and several other negroes picking cotton for him. Before they concluded their week’s work he went to the Dallas fair, and left money with his wife to pay the negroes for picking the cotton, which she did. Said Wallace also arranged with one Dunlap to haul the negroes from his place where they were picking back to town at the end of the week, which he did. Mrs. Wallace, the wife of Buck Wallace, noticed the bundles appellant and the other negroes had put in the wagon to be hauled off, and thought they put in more bundles of bedding than they had, and became suspicious that they were taking some cotton. She told her father, and he advised her to go and get the sheriff and find out about the matter. She got in a car, went to town, got the sheriff, went back and met the appellant and the other negroes about a mile east of town. She and the sheriff both swore- that when they asked appellant if he had any cotton in the wagon he, appellant, expressly denied that' he had any cotton in the wagon. The sheriff then told them to get out, which they did, and he searched the wagon and found two sacks of seed cotton in the bottom of the wagon covered up with their bed clothes and cooking outfit. Appellant introduced his brother, Son Watkins, who testified that he was present at the time appellant took this cotton, but he said that appellant claimed that he was taking it to raise sufficient funds for himself -to go to Dallas, and when he" came back he said he intended to pay Mr. Wallace for the cotton, and claimed that the reason he wrapped it up in the bedding and put it in the bottom of the wagon was that he did not wknt his wife to know that he was going to Dallas. After the sheriff had made him and the other negroes get out of the wagon, and he searched the wagon and found the cotton therein, appellant told the sheriff that he did not intend to steal the cotton, but thought it would be all right with Mr. Wallace for him to take and sell it, and afterwards pay Mr. Wallace for it. Mr. Dunlap, who hauled appellant and the other negroes into town, said that when he went out to get them he did not see and did not know that there was any cotton being hauled away; that it turned out the cotton was rolled-up in the bedding and put in the wagon in such way he did not know and could not tell that it was there until after the wagon was searched by the sheriff. Mr. Wallace, the owner of the cotton, swore that he did not give appellant his consent to take the cotton, and that it was taken without his knowledge and consent.

• The evidence was amply sufficient to show that appellant stole the cotton with the intent do deprive the owner of the value thereof, and to appropriate it to his own use and benefit. The court did not err in refusing his peremptory charge to acquit.

Appellant requested several special charges. The court in his charge gave those requested by appellant, which should have been given substantially as he requested them.

Appellant’s defense was that although he took the cotton—stole it— that when he took it he had no fraudulent intention, but took it with a view and intention of paying for it, and that he thought his taking it would be satisfactory to the owner. This was all fully submitted by the judge’s charge to the jury, and before they could convict they were instructed that they must believe from the evidence beyond a reasonable doubt that he fraudulently took the cotton from the owner without the consent of the owner, and with the intent to deprive the owner of the value of it, and appropriate it to his own use and benefit.

He submitted appellant’s claimed defense as follows: 5. If you believe from the evidence that the defendant when he took the cotton had no fraudulent intention, but took the same with the view and intention of paying for same, or if you have a reasonable doubt as to whether or not he did so take the same, then you will-find the defendant, not guilty.

6. If you should believe from* the evidence.that defendant took the cotton without the knowledge and without the consent of Buck Wallace,, and you further believe from the. evidence that at the time of taking' the cotton the defendant intended to pay for same, and believed that it would be satisfactory to Buck Wallace, or if you have a reasonable doubt as to whether or not the defendant believed it would be satisfactory with Buck Wallace, or whether he intended to pay Buck Wallace for the cotton, you will acquit him.

These charges submitted appellant’s defense completely, and were all that should, have been given on the subject.

However, appellant requested a charge on recent possession and explanation of stolen property, and evidently the court in deference to his request submitted that question to the jury. This question really should not have been submitted at all, but as appellant requested it he can not complain at the court submitting it. The evidence did not really raise that question. On this subject Mr. Branch in his 2 Ann. P. C., sec.' 3469, lays down the undoubted principle applicable to this question as follows: "Possession of property recently stolen being a circumstance only, no inference of guilt is deduced therefrom as a matter of law; therefore it is no more necessary to single out and charge on the circumstance of such possession than it would be to single out and charge on the circumstance of flight or motive. Nor does the fact that an explanation of such possession is in evidence require a charge on the subject of possession and explanation. An explanation is of no consequence to either side unless it involves some defense; hence an affirmative charge on the defense involved in the explanation is all that is required and is the safest and fairest way of submitting the issue to the jury.” He cites some twenty-three cases of this court in point supporting the principle announced by him.

So that in no event did the court err in charging as he did, and in refusing appellant’s special charges.

Appellant has two bills of exception to the claimed argument of the county attorney. In one, No. 6, he complains that the county attorney-said: “He is no account, trifling negro,” and asked the jury if they would like to credit him for $20. He excepted to that argument of the: county attorney. The court sustained his exception, and gave his written charge at the time telling the jury not to consider for any purpose ..whatever the said argument of the county attorney. The court in approving this bill qualified it by stating that he charged the jury in\ writing not to consider said remarks of the county attorney on appellant’s request. He further said: “However, I do not think the attorney-used the above language and in my judgment the language he did use could have been properly used in answer to the argument of defendant’s attorney.”

In another hill, No. *1, he complained of this language of the county attorney: “You gentlemen well know that last fall cotton was good and any negro could have had money sufficient to go to the Dallas fair,” to which language appellant objected. The court sustained his objection, and at the time verbally charged the jury not to consider the said argument. In the qualification of his bill the judge stated that the appellant’s attorney in his argument talked of the reasonableness of defendant’s action, and the judge further said in his qualification: “In my judgment the above argument was justified in replying to defendant’s attorney”; that he charged the jury orally not to consider said remarks by the county attorney, and would have charged them so in writing but the appellant did not request a written charge on that, subject until after the jury had retired.

Appellant has another bill to the action of the court in qualification' of his bill No. 6, above stated. He shows that he prepared his bills, submitted them to the county attorney, and turned them over to the; judge just a few days after the trial was concluded; that the judge kepis them until the evening of the last day, the twentieth after adjournment,, and then made the qualification above noted to his bill No. 6, and filed, it with the clerk. He excepted in another bill to this action of the court, in substance, stating that it was without his knowledge and consent, but in that bill he nowhere contends or claims that the qualification placed on his bill No. 6 by the judge was not in fact true,- and by not objecting on that account he impliedly admitted that the judge’s. qualification, as a matter of fact, was true. Disregarding the judge’s qualification of this bill, it shows no error.

Hone of these bills present any reversible error. They are somewhat of an unimportant nature. However, appellant’s claimed defense, and doubtless as the court stated in his qualification of his bil'1 Ho. 7, his attorney’s argument would naturally suggest such a reply thereto as the county attorney made, and in no event would either of these matters justify this court to reverse this case.

The judgment is affirmed.

Affirmed.