Cascio v. State

HAWKINS, Presiding Judge.

Conviction is for theft of an automobile tire, wheel and inner tube from Mack Massey, punishment assessed at a fine of $500.00 and two years in the county jail.

On the night of February 28, 1942, Massey’s car was parked on the street in Denton in front of his home. The spare wheel, tire and tube were in the trunk compartment of the car. Mrs. Woodrum lived across the street from Massey. About eleven o’clock that night she saw a dark car in the street and saw two men walking around the car. She called Mr. Massey on the phone. She could not identify the men. When Massey went to his car he discovered the property mentioned was gone. The tire was new, had never been on the ground. He immediately notified the officers. Later he found his property at the city hall, identified it and it was turned over to him by Jesse Griffith, one of the police officers.

Charles Selvidge, a student at the North Texas State Teachers College, testified that on the night of February 28, 1942, someone took a tire from his car which was parked in front of Chilton Hall. He recovered the tire the next day. Don Thomas, who also lived at Chilton Hall, testified that he saw two men get out of a car and one of them made several attempts to get in other cars which were parked in front of the hall. On direct examination the witness pointed out appellant as one of the men, but on cross examination said he could not swear to his identity, and on redirect said it was his opinion that appellant was the man he saw. Thomas did not see the man take anything from the Selvidge car. He reported to the police what he had seen, however.

Buddie Harris worked at the Goen Funeral Home in Den-ton. On the night in question his car was parked in front of the funeral home. The next morning he discovered the lock on the car had been broken. He did not say anything had been taken from his car.

Jess Griffith’s evidence, in substance is as follows: He and other officers first had a report about the theft of the Massey tire, and then the report of the theft from Selvidge at Chilton Hall. On the way to the latter place they passed the funeral home, and saw a car parked there with one man in the car. The officers turned and went back and the car moved away. At this time two men were in the car. At this point the chase began. At one point the car the officers were following turned into the light from the officers’ car, and some of the officers gave it as their opinion that appellant was the driver of the car. Sometimes reaching a speed of 90 miles per hour the chase continued until the fugitive car turned over, as did also the officers’ car, both cars going through a fence at a turn in the street. Both men ran away from their wrecked car and escaped arrest that night. There was a tire and wheel in the back seat of the car. It was a used tire. The trunk was locked. This witness did not examine the inside of the trunk. The Grace Barrow Motor Company took the cars in. Two hats were found at the scene of the wreck. Witness took them to the city hall and turned them over to Mr. Hodges.

Mr. Hodges, a deputy sheriff, testified that after appellant had made bond and gotten out of jail he asked witness if he would go to the city hall and “get his hat for himthat witness did go and get one of the hats which officer Griffith had turned over to witness, delivered it to appellant, who said it was his hat.

Floyd Graham, a teacher at the North Texas State Teachers College was in the chase on the night in question. After the wreck he noticed the keys were still in the ignition lock on the fugitive’s car. He took the keys and the next day gave them to Glen Lanford, who is also a city officer.

On recross examination of this witness appellant’s attorney developed the following: “We got the Massey call first. I do not remember whether we got a description of the car. We got a description of the car at Chilton Hall. We saw a car that fit the description at the Goen and Farris Funeral Home.”

Lanford testified on direct examination as follows:

“I was a city policeman in Denton on February 22, 1942. I remember when the police car turned over on West Oak Street. I came on duty the next morning. I know where the Grace Barrow Motor Company is located. I went to the Grace Barrow Motor Company and saw a Ford that had been wrecked. I looked at two cars there. The wrecked city car was there also. I examined the other car. I made two trips down there. It was a 1940 or 1941 black Ford. It had a trunk on it. The trunk was locked. I unlocked the trunk with a key. I got the key from an officer that was in the chase. I got the keys from Floyd Graham. He is a Deputy City Marshall and Teacher at the Teachers College. I opened the trunk and examined it. I found two tires there. There were two tires and wheels in the trunk. One of them was bolted down. I judge it was the spare tire of the car. The other tire and wheel were lying loose in the trunk. The one that I took out of the trunk was a size 650 x 16 U. S. Royal tire. It appeared to be a new tire. The tire was on a wheel. It was a dark grey Pontiac wheel with a red stripe. I took it to the city hall and Mark Massey identified it as his tire.”

We have been at some pains to detail the evidence at greater length than would ordinarily be thought necessary on account of appellant’s contention that the evidence does not connect him with the Massey property. The case of Hampton v. State, 138 Tex. Cr. R. 408, 136 S. W. (2d) 820, is cited as supporting appellant’s contention. There, by inadvertence likely, the State left a gap in the evidence which failed to connect Hampton with the stolen car. We discover no such defect here as is apparent from the evidence related.

Appellant objected to the testimony of Selvidge and Thomas as to the incident occurring at Chilton Hall, and as to the loss by Selvidge of a tire, wheel and tube, on the ground that it was proof of an extraneous crime which did not come within any exception to the general rule prohibiting such proof. The trial court says in his explanation of the bills (Nos. 1 and 2) complaining of the matters mentioned, that the evidence was admitted upon the question of system and identity of appellant. In Lawrence v. State, 128 Tex. Cr. R. 417, 82 S. W. (2d) 647, we said: “Reverting now to the State’s other contention that proof of the other offenses by appellant was admissible to show ‘system.’ The use of this unqualified term as pointing out another exception to the general rule which excludes proof of extraneous crimes has been productive of much confusion. It has been held many times that the fact that two or more crimes were committed in the same way does not show system. Long v. State, 39 Tex. Cr. R. 537, 546, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501; Missouri v. State, 109 Tex. Cr. R. 193, 4 S. W. (2d) 68. The mere fact that two or more distinct crimes were committed in the same way, or even in pursuance of the same conspiracy, does not show system. Hunt v. State, 89 Tex. Cr. R. 89, 229 S. W. 869; Cone v. State, 86 Tex. Cr. 291, 216 S. W. 190; Long v. State, 39 Tex. Cr. R. 537, 47 S. W. 363; Smith v. State, 52 Tex. Cr. R. 80, 105 S. W. 501.”

It is our understanding that evidence developing a system used in the commission of crimes is not admissible unless it goes to the identity of accused as the perpetrator of the offense for which he is then on trial, or to show intent, where that is an issue, or where it aids in solving some other pertinent issue in the case on trial. From the language of the trial court in explaining certain bills we think it was in connection with the identity of appellant that the term “system” was used. Under the facts here present, however, we question the application of that principle to some of the evidence admitted over objection.

Upon the question of “identity” we are of opinion the trial court properly admitted the evidence of Selvidge and Thomas regarding the incident occurring at Chilton Hall, and the finding of Selvidge’s property in the fugitive car. It will be remembered that no one identified appellant in connection with the Massey theft. The identification of him by Thomas and others was made under such circumstances as permitted proof of other circumstances upon the issue of identity, such as the finding of a hat at the scene of the wrecked car, which hat was subsequently claimed by appellant, and the finding in said car of both Massey’s and Selvidge’s property.

By bill of exception number three appellant complains because of the admission over objection of the testimony of Mr. Harris to the effect that his car which was parked in front of the funeral home had been tampered with on the night Massey’s property was stolen. This evidence was admitted on the ground that it showed system and identity of appellant. The court fell into error in overruling the objection to this evidence. Harris did not discover until the next morning that the lock on the trunk of his car had been broken. There was nothing in the incident to throw light on the identity of appellant as the party who stole Massey’s property. In view of the penalty assessed we are unable to say that proof of the incident mentioned was not appropriated by the jury to the hurt of appellant. It certainly could have been so appropriated.

Bills of exception numbers four and five bring forward complaint that the State proved over objection that complaint had been filed against appellant for speeding on the night in question. The trial court properly concluded that it was error to have admitted this evidence and withdrew it from the jury. Ordinarily we hold that error in admitting such evidence can not be cured by its withdrawal. See Haney v. State, 57 Tex. Cr. R. 158; 122 S. W. 34; Musgrave v. State, 28 Tex. Cr. R. 57, 11 S. W. 927, and other cases cited in Branch’s Ann. Tex. P. C., page 100. Moreover, we would hesitate to reverse the present case for this error alone in view of the withdrawal of the evidence, and the further fact that it was properly in evidence that appellant during the effort to evade arrest was driving between 70 and 90 miles per hour, and in view of the further fact that in the cross examination of Mr. Moore, the sheriff, appellant’s attorney developed the fact that three cases were filed against appellant.

Bill of exception number six is only a complaint at the action of the court in overruling the amended motion for new trial. It presents only those points which have already been discussed.

For the error discussed, the judgment is reversed and the cause remanded.