Berdell v. State

In his motion for rehearing, appellant lays much stress upon the fact, as claimed by him, that the record presents no sufficient evidence that the wagon in question was taken by any one. The facts show beyond question that the wagon was in the alley adjacent to appellant's premises on August 1st; the owner testified that he saw it there then; — also, that said wagon was gone on August 10th thereafter. About the latter date, Puckett, the owner, began hunting for it, and went to appellant's place and asked him where it was. Receiving no reply, and actuated by some information he received from the cook of appellant, he pressed the question, and appellant told him he had sold it, and offered to pay him $20 for it. Puckett further testified that he had three conversations that day with appellant, and that in the last one, appellant again admitted that he had sold the wagon, and offered to pay him $100 for it.

Mrs. Martin, for the appellant, testified that acting for him, and after telephoning to where he was, to know if the price offered her was satisfactory to appellant, she sold the wagon in question for $20.

Appellant testified in his own behalf that he honestly thought the wagon was his, and that he had the right to sell it; and that when he received the `phone message from Mrs. Martin to know if he would take $20 for it, he said, "Yes, mam;" and that he knew that the money received for the wagon was given to his lawyer and used for his benefit.

It seems so admittedly true that the wagon was sold, and sold under appellant's direction and that he got the benefit of the same, and that this occurred between August 7th and 10th, that we are unable to see any room for dispute over the proposition that the wagon was taken. Mrs. Martin said that on August 7th, the wagon "set there;" that a man came and looked at it, and offered her $20 for it, and that she telephoned and was told that the appellant said "take it," and that she sold it — took the $20, and sent it to appellant's attorney. When the owner came back a few days later the wagon was gone. The matter of the taking could hardly have been made clearer.

Appellant contends that the trial court should have charged on circumstantial evidence, and cites the Stewart case, 71 Texas Crim. Rep.; 480, 160 S.W. Rep., 381. The facts are wholly dissimilar. Stewart's possession of the alleged stolen horse some four months after it was stolen, and his false explanation of how he came by such possession, were substantially the criminating facts in that case, and it was purely one of circumstantial evidence. This Court has always held that the admissions and confessions of an accused taken a case out of the rule of circumstantial evidence, and Vernon cites, in Section 38, under Article 735 of his Code of Criminal Procedure, numerous authorities to establish the proposition that a charge on circumstantial evidence is not required when the accused has made admissions or confessions which show that he committed, or which connect him with the crime charged. If the State's case be true, appellant admitted that he sold Puckett's wagon; if the testimony of his witness, Mrs. Martin, be true, she sold it at his direction and in either event he appropriated the proceeds; and we are wholly unable to see where only circumstances were relied upon by the State.

We have carefully examined the record, and conclude that we were correct in the original opinion, in holding the testimony sufficient to show that the wagon when taken, was in the care, control, and management of Mr. Puckett, its owner. We do not think the fact that Mr. Puckett himself had laid the double-tree inside the yard of appellant's hotel, and had placed some of the irons under appellant's porch, would change the status of ownership.

The motion for rehearing is overruled.

Overruled.