Whitehead v. State , 134 Tex. Crim. 579 ( 1938 )

Appellant has filed a motion for rehearing vigorously complaining of the original opinion herein on many and varied grounds.

He first complains of the admission in evidence of the statement of Frank Pool relative to the delivery of the sacks of cottonseed cake, and we are still of the same opinion that other testimony relative to the delivery of the same sacks by Frank Pool, which came in the role of an admission upon the part of the appellant, and unobjected to by his attorneys, would cure any supposed error in such testimony as to Pool's statement.

He complains of the fact that the court did not submit to the jury the question of misdemeanor theft. The testimony shows that there were thirty sacks stolen from Mr. Slocum; that Pool delivered to appellant twenty-nine sacks thereof; that these sacks were of the value of $2.00 each in wholesale lots, and of a slightly greater value at the place received and concealed, their value thus totaling at least $58.00. There was no testimony either reducing the number of sacks of cake, or their value. A charge on misdemeanor theft was not called for.

Appellant complains also of the fact that he was not allowed to talk to Frank Pool, who was confined in the county jail, outside the presence of the sheriff. We think the qualification of the trial judge to this bill answers this proposition:

"Defendant's counsel, Mr. Rogers, on the morning that this case was set for trial asked me if he might go to the jail and talk to Frank Pool, and I stated to him that it would be all right and I called the sheriff and told him to take Mr. Rogers to the jail and let him talk to Frank Pool, and the sheriff at the time set by Mr. Rogers, went to the jail with Mr. Rogers and took Frank Pool out of the cell and brought him out into the waiting room for Mr. Rogers to talk to him; but would not leave the room and let Mr. Rogers talk to him in private. Mr. Rogers declined to talk to Frank Pool in the presence and hearing of the sheriff, and they came back to the court house. Mr. Rogers asked me to permit him to talk to Frank Pool out of the presence and hearing of the sheriff, and after I determined that Mr. Rogers was not Frank Pool's counsel and did not represent him and that Mr. Pool had not requested an interview with Mr. Rogers, I would not order the sheriff to permit Mr. Rogers to talk to said witness out of the presence and hearing of the sheriff; that it would be alright with me, if it was agreeable with the sheriff; that the sheriff was running the jail and had charge of the prisoners and he was the man to decide upon that question, as he was under bond for the safe keeping of all prisoners. Mr. Rogers did not state to the court that he wished to use Frank Pool as a witness and defendant issued no subpoena for Frank Pool as a witness and did not, during the trial, call Frank Pool or ask for him as a witness. It was further shown by Mr. Rogers that he had talked to Frank Pool and got a statement from him two weeks previous at Huntsville."

In our opinion the alleged stolen property was properly identified by appellant's own statements.

We can only reiterate that it seems to us that the court gave a proper charge on the law as applied to the facts in this case.

We think this case has been properly decided, and the motion for a rehearing will be overruled.