Smith v. State

PRENDERGAST, Judge.

This is an appeal from a conviction for the theft of an automobile, with the lowest punishment assessed.

Briefly summarized, the testimony shows that Hr. Hildreth, who lived in Blue Ridge, in Collin County, was in Dallas a short time before June 18th to buy an automobile, and there met appellant and so told him. Mr. O’Rourke’s automobile was stolen from Cycle Park in Dallas about. 9 or 10 o’clock in the night of June 18th. Later that night appellant, with Will O’Leary, reached Mr. Hildreth’s home with Mr. O’Rourke’s car. Appellant knocked on- Mr. Hildreth’s door, called him out of the bed, and told him, “I have brought you the car.” Mr. Hildreth asked him, “What car ?” and he said, “The car I was telling you about down at Burleson’s”—the place they had met in Dallas. Appellant then tried to sell him' the car. At this time appellant introduced said O’Leary to Mr. Hildreth under the name of Tom Hawkins. After some further parleying, because it was so late, Mr. Hildreth induced them to wait over until morning. Appellant then backed the ear into Mr. Hildreth’s barn, and they remained there-until the next morning. Mr. Hildreth was suspicious of them and early the next morning sent for the constable, who came to his house and arrested them and took charge of the car. The car was later identified as Mr. O’Bourke’s and delivered to him.

Appellant testified that on the night of June 1.8th when he met Hawkins in Dallas, Hawkins already had the car and wanted him to take him to the- man whom he said wanted to buy a car, and he went to Hildreth’s with him. That he had no interest in the car, but Hawkins was to pay him $5 for taking him to Hildreth’s. Hildreth said appellant, that night, told him Hawkins owned the car and had owned it for two months.

Will O’Leary (Tom Hawkins) swore that appellant met him in Dallas before the night of June 18th and told him “he knew where he could sell one (a car) if we could get it.” “He told me we could sell the car at Blue Ridge.” That on the night of June 18th, about 7:30 or 8 o’clock, they met again, when the subject was again referred to, and appellant told him he would go get some money for gasoline, “and we will go get the car.” That he got $2 and they went arid got the car and drove it to Blue Ridge, with the result as stated. That he did not tell appellant it was his car—“he knew it was not my car.” That appellant suggested he take the name of Tom Hawkins; he said, “You can’t go by your name, because they could identify you.” That they were to split the money, half and half, they were to get for the car.

O’Leary (Hawkins) was an accomplice, arid the judge so told the jury in a proper charge, requiring corroboration. He had already pleaded guilty to stealing said car, but had not been sentenced. The court, therefore, properly overruled appellant’s objection to his competency as a witness. Art. 788, C. C. P., and cases cited in note 19, p. 701, 2 Vernon’s Crim. Stats.

Appellant has another bill wherein he complains of the testimony of said accomplice witness that he first met appellant in the county jail. This bill is entirely too meager. It does not show the surroundings so as to show error or authorize this court to hold it error. From the testimony of this witness on the subject, if we could look to the statement of facts, we gather that the witness.himself was in jail, confined on some charged offense, and that appellant was there to see him about making bond for him—not himself confined in jail. At any rate it is not shown to he any such error as to justify a reversal.

The evidence was sufficient to show that appellant himself, together with O’Leary, actually stole the car. It also raised the question, and was sufficient to show, that he was a principal with O’Leary even if O’Leary himself personally stole the car. Both of these issues were submitted by the court in his charge to the jury, to which charge there was no objection at all. Appellant requested some special charges on the same subject but the court refused to give them, stating thereon that he did so because they were embraced in his main charge. The court committed no reversible error in refusing to give his special charges.

The. judgment is affirmed.

Affirmed.