Dalton v. State

BEAUCHAMP, Judge.

The appeal is from a conviction for receiving and concealing stolen property with a penalty of two years in the penitentiary.

The appellant is charged by indictment in the first count with the offense of burglary of a jewelry store in Wichita Falls, and the theft therefrom of certain watches alleged to be of the value of $828.00. The second count in the indictment charged him with receiving, and concealing said watches from a person unknown to the grand jury, with the knowledge that they had been stolen. After the evidence was heard the court submitted to the jury only the second count.

The evidence discloses that after appellant had spent the night in Abilene, he was riding with a party in his car, probably as a hitch-hiker, and before reaching the city of Big Spring he made known to his host that he had a sack of watches consisting of about twenty in number. This aroused the suspicion of the driver of the automobile who had communication made to the Sheriff at Midland, and caused the arrest of appellant soon after he had left the car on the west side of that city. The Sheriff and City Marshal of Midland took appellant to the jail and discovered from his registration card that he lived in Wichita Falls. They then communicatéd with the Wichita County Sheriff and learned that a burglary had been committed a short while prior thereto in which a number of watches, similar in kind and number to those in appellant’s possession, had been taken. The Sheriff of Wichita County proceeded to Midland and took appellant back to Wichita Falls. He testified at the instance of the state that appellant “said * * * * * he had found them; he said he had not stolen them. He said he had found the waches.” Thereafter, and while appellant was in the jail, the sheriff further questioned him and learned that he had disposed of two watches — one to a girl in Abilene, who had spent the night with him in a hotel, and another to a man whom he described in another city, which proved to be Big Spring. Following the information thus given, both watches were recovered. Appellant also signed a written confession before the District Attorney in which he declined to say where he got them. This confession does not aid the state in the prosecution for receiving and concealing stolen property.

No evidence was introduced by the state to show that the grand jury made any effort to obtain the name of the person, or persons, from whom the watches were received by appellant, or that they could not do so. There is nothing in the record to indicate that it was not possible for them to learn the name of such person.

At the conclusion of the testimony appellant filed a motion for an instructed verdict, which the court declined to give. The record contains a number of bills of exception which are qualified by the court. Appellant excepted to such qualifications and the trial court failed to file his own bills. Consequently, there is no force or effect to be given to the court’s qualifications, and the bills are before us as if approved when presented.

We have concluded that the court should have given the instructed verdict because there is no evidence that would even tend to show that appellant received the watches from another person. The possession of the watches, at the time and under the circumstances described, would have raised the presumption of theft and would have supported a conviction on such a charge. In the absence, however, of any evidence that another person had possession of them, and that appellant received them, a conviction for receiving and concealing stolen property is not supported. The evidence above quoted as given to the Sheriff by the accused soon after his arrest was an exculpatory statement by which the state, under all of the circumstances of this case, is bound. No evidence was offered to refute such statement, and it is not shown to be false, or a part of a fraudulent scheme, by the facts and circumstances of the case. A very valuable discussion of this subject is found in Otts v. State, 116 S. W. (2d) 1084, and the conclusion therein is controlling. See also Robidoux v. State, 34 S. W. (2d) 863; Stelman v. State, 58 S. W. (2d) 832; Yarbrough v. State, 67 S. W. (2d) 612; Am. Dig. Criminal Law, Key No. 781 (8).

Complaint is made of the introduction of the watches, on the ground that appellant was unlawfully arrested. This complaint falls in the face of the fact that his confession was introduced, and that this confession discloses the same facts as testified to by the sheriff and places the watches in his possession. The rule is the same as if appellant had taken the witness stand and testified to such facts.

The judgment is reversed and the cause is remanded.