Gerber v. State

Conviction is for accomplice to theft; punishment fixed at confinement in the penitentiary for ten years.

The injured party was Norfleet. He resided in the northern part of the State and there owned a tract of land. In a hotel in the City of Dallas he was introduced by one Miller to a man named Spencer. Miller was also a stranger. Spencer told Norfleet that he was representing parties who wanted to buy land in Texas, and after negotiations entered into an engagement with a view to purchasing Norfleet's land. While they were conversing, a pocket-book was found by Norfleet, and in it were various papers and a sum of $240 in money. By data contained in the book, it was identified as belonging to a man named Stetson, who was found on inquiry to be an inmate of the hotel. He, upon receiving the pocket-book, expressed great delight and offered a large reward, and finally induced Norfleet to engage in certain supposed stock speculations, which culminated first in the loss of $20,000 and later of $25,000 by Norfleet. Stetson claimed to be operating for persons in New York and, to have inside information upon which large sums of money could be made by them, and claimed that he had identifications papers by which he could conduct operations in the cities of Dallas and Fort Worth, Texas. In the course of the transaction, there were exhibited to Norfleet by Stetson and Spencer large sums of money. A man by the name of Ward, acted with Stetson and Spencer and impersonated the Secretary of the Dallas Stock Exchange and the appellant fraudulently impersonated the Secretary of the Fort Worth Stock Exchange. The representations concerning the investments were false and Norfleet's money was stolen, possession having been obtained by false pretenses.

The appellant is charged as an accomplice of Stetson and Spencer in the theft of the sum of $25,000. Miller, it appears, was also indicted for it, and the appellant complains of the court's refusal to order a severance to the end that Miller might be first tried and his testimony be available to the appellant. The bill, as qualified, shows that the prosecution against Miller was dismissed. His testimony was thereby available. Code of Crim. Procedure, Art. 791-792; Jones v. State, 85 Tex. Crim. 538.

Several bills complained of the refusal of the court to exclude the testimony showing the negotiations which took place between Norfleet and Stetson, Spencer, Ward and Miller in the absence of the appellant. It was essential that the State prove the guilt of the principal offenders named in the indictment. The transactions and declarations of Stetson and Spencer showing their guilt were properly received. Branch's Ann. Tex. Penal Code, Sec. 725; Parker v. State, 24 Texas Crim. App., 61; Arnold v. State, 9 Texas Crim. App., 438; Sapp v. State, 87 Tex.Crim. Rep., 223 S.W. Rep., 468; Cox v. State, 8 Texas Crim. App., 256. The part of these transactions and declarations which related to the theft of the $20,000 item were relevant and admissible as bearing upon the guilt of the principals and was properly limited to that purpose by the court's charge.

Appellant, when arrested in California, was in company with the same conspirators who were charged with this offense, and was acting with them in endeavoring to perpetrate a similar fraud, using the same means, including the pocket-book and papers which were used in deceiving Norfleet. The court did right in admitting testimony to these facts to identify the appellant with the transaction embraced in the indictment and having, at the request of appellant, in a special charge, confined to that purpose, complaint of the action of the court in admitting the testimony is, in our judgment, without merit.

The sufficiency of the indictment is assailed. The fourth count alone was submitted to the jury. We have before us no brief for the appellant, and in our examination of the indictment in the light of the motion to quash, we have been unable to discern that it fails in any particular to fulfill the requirements of the law. To set it out would serve no useful purpose, suffice it to say that we discover in it no departure from the approved forms.

Objections urged against the charge of the Court are mainly addressed to the proposition that the evidence fails to sustain the conviction of the principal offenders for the reason that the transaction in which Norfleet lost his money was a gambling transaction. The evidence, on the contrary, we think, shows that the money was not lost in a gambling transaction or device, but that possession of it was fraudulently obtained by false representation of fact, and the possession thus acquired was made use of to appropriate the money to the use of Stetson and Spencer; that the devices and representations used to deceive Norfleet were conceived and agreed to by Stetson, Spencer and others, including the appellant. The appellant, having knowledge of the unlawful end to be attained, having aided and encouraged it, adopted that part, if any, which had preceded his entry into the scheme. Baker v State, 7 Texas Crim. App., 613; Harris v. State, 31 Tex.Crim. Rep.; Branch's Ann. Tex. Penal Code, 693.

The evidence is sufficient and the procedure regular.

The judgment is affirmed.

Affirmed.

ON REHEARING. June 24, 1921.