McCutcheon v. State

Appellant was convicted of burglary with intent to steal, and was sentenced to serve a term of two years in the penitentiary.

There is only one proposition presented to us suggesting an error in this trial. That proposition is contained in appellant's request to the trial court to instruct the jury that the witness, Mr. Matthews, was an accomplice, and in the event of the refusal of such instruction, then that the court submit the fact of such accompliceship to the jury.

Mr. Matthews testified that he knew appellant by sight but not by name. That appellant had bought a little material from him, and sold him some secondhand plumbing fixtures in the past, and that no question was ever raised as to the title of such fixtures. That on the date in question appellant came into Matthews' secondhand store early in the morning and inquired if he, Matthews, would buy some secondhand fixtures, stating that he had been out rabbit hunting and had stumbled on some merchandise, and he wanted to know if Matthews would buy it. This conversation seemed to have taken place openly, as there was an officer present at such time. Matthews agreed to buy the same, if it was all right, and later appellant brought into the place of business of Matthews a commode, a wash basin and a lavatory and placed them on the floor among other secondhand goods. At such time there were four or five customers in Mr. Matthews' place. Mr. Matthews agreed to pay $32.00 for the goods thus purchased from appellant, and, after waiting on his customers, he prepared a bill of sale to such goods, which the appellant signed with the name of R. B. Lee. The dealer paid a portion of the purchase price, but on account of not having enough money to complete the payment, appellant was to return for the remainder of the money later on. Later on, in a few days, Mr. Gallagher, the owner of the alleged burglarized house, came into Matthews' place of business for the purpose of purchasing some secondhand fixtures to replace the ones taken from his house, and there found the very property taken from his house, and positively identified same. Matthews then identified appellant as the person who sold him the alleged stolen property, which property was openly exhibited on the floor of such dealer's business house where other wares were also exhibited.

We are of the opinion that this testimony does not in any way connect the dealer Matthews with any burglary of the house, nor does his conduct savor of any guilty knowledge that such articles were the fruit of a burglary or were stolen; but instead we think such conduct evidences an innocent intent on such dealer's part, and a belief in the valid title of appellant to such goods.

Mr. Branch in his Penal Code, p. 361, says:

"Proof merely that the witness purchased, received, or helped kill or dispose of the stolen property, will not make his testimony that of an accomplice, when there is no proof of facts which would put such witness on notice that there was something wrong with the property," citing many cases.

Also see Vick v. State, 102 S.W.2d 1060; Holmes v. State,68 S.W.2d 189, and Pauly v. State, 246 S.W. 375.

We think the trial court was correct in refusing to charge the the dealer was an accomplice, and also correct in refusing to submit the matter of such accompliceship to the jury for their determination.

Appellant offered no testimony, nor affirmative defense.

The judgment is affirmed.

ON MOTION FOR REHEARING