Goldstein v. State , 73 Tex. Crim. 558 ( 1914 )

Appellant was prosecuted and convicted of receiving and concealing stolen property.

A number of bills of exception are presented in the record in regard to the introduction of testimony, but as qualified and approved by the court none of them present error. However, the appellant submitted a special charge requesting the court to submit to the jury the question of whether or not the witness, Frank Barrett, was an accomplice within the meaning of our statutes governing accomplice testimony. Claude Rice is the self-confessed thief. He was staying with Barrett. He says Barrett knew he was a thief, yet kept him at his home. That on the night the property was taken he and Barrett went to Lake Cliff and went in swimming. That he, Rice, deposited his pocketbook with the manager of the swimming pool; that they remained in bathing about an hour, when Barrett first got out and went outside; that when he, Rice, got out, the manager gave him the wrong pocketbook, and he discovered it when he got outside and called Barrett's attention to it. That they then went on to Barrett's and he, the next day, placed it with appellant to be disposed of. The property was found in appellant's possession. Barrett testified: "One night we went in swimming over at Lake Cliff, and I came out and dressed ahead of Claude and waited out there at the bead of the hall, and then I went on to the automobile entrance and saw him there and we went to Beckley Avenue. When I got out, Claude said they had given him the wrong pocketbook out there, and he did not know what was in it; he first said there was a couple of dollars in it, and then said, `I am not much better off,' and we went a little further and he said there was some jewelry in it; and when we got home he taken this jewelry out and showed it to me. We left there and went to the confectionery store upon Marsalis and Jefferson Avenue; and we came back by the way of Tenth Street and then Claude threw two of the rings on the ground and stamped them in the ground. That was on Tenth Street in Oak Cliff, about opposite the telephone building. We came home and I asked Claude to take them back, and he said he was scared to, said he was scared of getting into trouble. I saw the stuff before I left home to go to the drug store. We went from Lake Cliff to my home, and he took the jewelry out and showed it to me, and I began to get nervous and excited; mother was sitting on the front porch and I was afraid she would hear us talking. In the morning Claude got up and took the stuff to town; took it to Dave Goldstein. I had a conversation with Dave Goldstein; one conversation I had with him I told him that I heard the people at Lake Cliff had mine and Floppy's description, and I said let's give the stuff up before trouble overtakes us." While he testified he did not know Rice was a professional thief, he admits he knew he had been convicted of a misdemeanor theft, and he had paid his fine, and again took him to his home. The testimony, as a matter of law, does not make Barrett an accomplice, yet we think the facts and circumstances, and especially his own testimony, are such as to raise that issue, and the court erred in not giving the following charge requested by appellant:

"An accomplice, as the word is here used, means any one connected with the crime charged, either as principal, accomplice, or accessory. It includes all persons who are connected with the crime by unlawful act or omission on their part transpiring either before, at the time of, or after the commission of the offense, and whether or not they were present and participated in the commission of the crime.

"Now, if you are satisfied from the evidence that the witness, Frank Barrett, was an accomplice, or you have a reasonable doubt as to whether he was or not, as that term is defined in the foregoing instructions, then you are instructed that you can not convict the defendant upon his testimony unless you first believe that the testimony of said Frank Barrett is true, and that it connects the defendant with the offense charged in the indictment and unless you further believe that there is other testimony in the case, corroborative of the testimony of said Frank Barrett tending to connect the defendant with the commission of the offense charged."

Reverse the case, and if Barrett was on trial, under the above testimony, together with the other facts and circumstances in evidence, we would hesitate long before reversing the case because of the insufficiency of the testimony. In fact, if the court properly charged on circumstantial evidence, and there was no error in the record, we would affirm the case, if the jury should adjudge him guilty, and under such circumstances the issue is raised with that force and cogency to require the matter to be presented to the jury.

The judgment is reversed and the cause remanded.

Reversed and remanded.

ON REHEARING. April 29, 1914.