Rogers v. State , 102 Tex. Crim. 444 ( 1925 )

The offense is receiving stolen property; the punishment is two years in the penitentiary.

The facts show that a store was robbed in Canadian and the goods taken to Amarillo and that appellant was found in possession of more than one hundred dollars' worth of said goods. We think the testimony is amply sufficient to support the verdict and are satisfied that the two accomplice witnesses who testified against appellant in the case were amply corroborated by other testimony, tending to connect him with the offense charged.

We have carefully examined the various special charges offered by the appellant and refused by the court and think that the record fails to show any error with reference to the court's ruling thereon.

We also think it was proper for the court to permit the president of the corporation owning the store in which the burglary was committed to state to the jury all of the things that were missing from the store coincident with the time the burglary was committed. We think that the authorities in this State are clear to the effect that the State has the right to make proof as to the entire amount of the theft regardless of whether each article mentioned is named in the indictment or not. This testimony seems to us to be clearly admissible as a part of the res gestae. A conviction, however, can be sustained only for the theft of those articles named in the indictment.

By bill of exception No. 3, appellant complains at the action of the district attorney in making inquiry as to the identity of the wife of the appellant. We think it was permissible for the State to make this inquiry. The indictment contained in this record shows that Fred Rogers and Mrs. Fred Rogers were jointly indicted for this offense. This being true, the State could not use the said Mrs. Fred Rogers as a witness against the appellant if she was in fact his wife. On the contrary, if the testimony should develop that she was not his wife, if the State desired to do so, it would then have the right to use her as a witness. We think no error is shown with reference to the matters complained of in this bill of exceptions.

Complaint is also made at the court's action in permitting the district attorney to ask the defendant if he thought that the witness Crowder was such a man as would come upon the witness stand and swear a lie against him and also at the court's action in permitting the district attorney to ask the appellant while on cross examination as to whether the witness Crowder had been his friend up until last August. It seems from the bill of exceptions that the witness did not answer the first question as to what he thought about the witness Crowder lying against him when the question was asked and that the district attorney did not insist on an answer to the question until after a long and heated colloquy between him and appellant's counsel. The bill sets out many questions and statements made by the district attorney and many separate and distinct objections and exceptions made to each of them, and the bill ends by stating that to all of which acts and rulings of the court, the defendant then and there excepted and tendered this his bill of exception No. 4. We doubt if we ought to consider the bill because of its rather confused and involved contents. Griggs v. State, 99 Tex. Crim. 215. We are clear, however, that it is not true that each of the matters complained of and excepted to in said bill shows error. For instance, it is perfectly apparent from the bill itself that the question to the appellant as to whether the witness Crowder had been his friend was a pertinent and proper cross-examination of appellant as a witness. In the form in which the bill is presented before we could hold that if it shows error it would be necessary for us to find that each of the matters objected to was erroneous. This, we are unable to do and therefore, hold that the bill shows no reversible error.

Neither do we think that bill No. 5 shows any reversible error. This bill complains because the district attorney asked the defendant whether or not if he had taken the goods in question he would tell the jury about it. This is not a proper method of cross-examination but we think it is not of such serious moment as to justify or authorize a reversal of the case.

Complaint is also made at the court's action in permitting the State to introduce one of the accomplices in rebuttal. This bill shows that appellant testified that he received the goods in question from a peddler by the name of Mooney who was staying at the hotel and the State in rebuttal placed on the stand Frank Morris, one of said accomplices and asked him whether or not he had seen a peddler at the place where appellant claimed he had received the goods from Mooney, and whether or not he knew of such a man being around there, and the witness answered each of these questions in the negative. We think this testimony was clearly in rebuttal of the appellant's testimony and was properly admissible as such.

Appellant also complains at the court's action in refusing to grant his first application for a continuance. This application shows that it was made on account of the absence of Mrs. Fred Rogers. The court qualifies this bill by stating that Mrs. Rogers was jointly indicted with the appellant for the same offense and was not a competent witness for him on the trial of this case. This ruling of the court was correct. Art. 82, P. C. of Texas; also see Section 732 Branch's P. C. for full collation of authorities. See also Ortiz v. State,151 S.W. 1056.

The court ruled correctly in refusing to quash the indictment herein. The same was not duplicitous and did not contain counts repugnant to each other. The first count in the indictment charged Chambers and Morris with the offense of burglary by breaking and entering a house owned by a corporation which the indictment named. The second count in the indictment charged this appellant and Mrs. Fred Rogers with unlawfully and wilfully advising, commanding and encouraging the said Chambers and Morris to commit said offense. In other words, it charged them with being accomplices to the burglary. The third count charged this appellant and Mrs. Fred Rogers with unlawfully and fraudulently receiving certain property alleged to have been stolen by Chambers and Morris from the firm on whose store the burglary was committed. These counts do not make the indictment duplicitous and it was a proper pleading for the State to charge each of them in the same indictment. The court submitted but one of said counts, to-wit, the one for receiving the stolen property, to the jury.

Under this condition of the record, it is clear that no error is shown by the court's action in refusing to quash the indictment. Trimble v. State, 18 Ohio App. 632; Houston v. State,47 S.W. 468. Last paragraph, page 261, Branch's P. C., for full collation of authorities.

Finding no error in the record, it is our opinion that the judgment should be in all things affirmed.

Affirmed.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.