Wilson v. State

The gravamen of the offense of which appellant was convicted was receiving stolen property with knowledge that it had been so acquired. Wharton's Crim. Evidence, Vol. 1, Sec. 35, page 135; Mehlman v. State, 92 Tex.Crim. R., 244 S.W. 602. It is appellant's contention that while the accomplice Barton gave direct testimony regarding the theft of the property and the delivery of it to appellant, yet the fact that appellant knew the property had been stolen was established by proof of circumstances only, hence that the court was in error in declining to charge on circumstantial evidence as to that phase of the case. If appellant is correct in his position that guilty knowledge of appellant was shown only by circumstances his legal proposition is directly supported by Grant v. State, 87 Tex.Crim. R., 218 S.W. 1062; Eads v. State, 92 Tex. Crim. 492,244 S.W. 603; Hix v. State, 21 S.W.2d 1054; Bloch v. State, 81 Tex.Crim. R., 193 S.W. 303; Nichols v. State,39 Tex. Crim. 80, 44 S.W. 1091; King v. State, 19 S.W.2d 52. This situation has necessarily caused us to again carefully review Barton's evidence. It was not necessary that Barton or anyone else say to appellant in so many words, "This property we are delivering to you is stolen property." The question is, does Barton's testimony amount to direct evidence on the point of appellant's knowledge that it had been acquired by theft?

On direct examination Barton testified that appellant asked witness and Kehoe if they could get any cotton-seed cake, to which Kehoe replied that he did not know of any but that witness replied that he knew where there was some but that Mr. Coble was a pretty good friend of his and that he would not go after it, whereupon appellant said, "To hell with friendship, money is bigger than friendship," after which witness said, "We decided finally that we could get two and a half tons from out there, and we went out that night and got the cake"; appellant had agreed to pay $35.00 per ton for it; that when they got to appellant's home that night about two-thirty he came out and told Kehoe to back his (appellant's) car out of the garage and to put the cake in there. Upon cross-examination the witness said that during the conversation appellant said, "You boys get the cake and I will give you $35.00 per ton for the two and a half tons." Further testifying on redirect examination Barton said that while they were talking and before appellant left that witness told appellant that he (witness) knew where Mr. Coble's cake was, but that he did not want to get it because he was a good friend of witness' to which appellant replied, "To hell with friendship, if you had rather have friends than money, it is all right." It appears from the record that an examining trial had been held upon the charge against appellant and that Barton had testified at such examining trial, and upon the instant trial appellant himself introduced Barton's testimony taken at said examining trial. It appears to have gone into the record for all purposes as we find no limiting charge with reference thereto. In that statement Barton testified that he told appellant and Kehoe that he (witness) knew where they could get some cake at Emmett Coble's place and that "we arranged and agreed with him that we could go and get it"; that appellant agreed to receive the cake at his garage and later take it out to his ranch; that appellant did receive the cake at the garage at two-thirty or three o'clock in the morning and paid the agreed price therefor on the next day and the day after. Many circumstances in addition were proven which go strongly to show appellant's guilty knowledge that he was receiving stolen property. We are not able to escape the conclusion that Barton's direct testimony with reference to the matter removed the case from the rule invoked by appellant.

The jury were told that Barton was an accomplice, and that they could not convict on his testimony unless they believed it was true and showed that appellant was guilty of the offense as charged, and even then they could not convict unless there was other testimony corroborating that of the accomplice and tending to connect appellant with the commission of the offense, if any.

Appellant now contends that the offense was a compound crime consisting first of stealing property, and second of appellant receiving it, with knowledge of the theft, and therefore that the court should have told the jury that the accomplice must be corroborated on both elements of the crime. Appellant's position is supported inferentially at least by Hanks v. State, 55 Tex.Crim. R., and Bloch v. State, 81 Tex.Crim. R.,193 S.W. 303, and by analogy is supported by Slaughter v. State,218 S.W. 767 and Brewer v. State, 93 Tex.Crim. R.,246 S.W. 663. We find it unnecessary to discuss the merits of the contention as the question is not properly before us. No exception was filed to the charge given pointing out in any way what is now claimed to be a defect therein.

The court was justified in refusing the special charge requested because he had already instructed on the subject. No specific objection to the charge given was called to the court's attention either in the requested charge or by proper written exception. This calls for application of the rule recognized in Walker v. State, 89 Tex.Crim. R., 229 S.W. 527; Boaz v. State, 89 Tex.Crim. R., 231 S.W. 790; Parker v. State, 98 Tex.Crim. R., 261 S.W. 782.

It is not thought necessary to discuss other questions raised in appellant's motion. The disposition heretofore made of them is thought to be correct.

The motion for rehearing is overruled.

Overruled.