Bismark v. State , 45 Tex. Crim. 54 ( 1903 )

Appellant was convicted of receiving stolen property, knowing the same to have been so acquired, and his punishment assessed at two years confinement in the penitentiary; hence this appeal.

Appellant made a motion to require the judge to recuse himself on the ground that he was prejudiced against defendant. The motion shows that when the case was called the district attorney suggested that he would file a motion to dismiss the case on the ground that the evidence was not sufficient to authorize the conviction. At this juncture the motion shows the judge to have stated that he thought he was disqualified to enter any order in said case because he knew defendant to be a liar and perjurer. The judge in his qualification to the bill says that he made some such remark when he thought the case would be dismissed; that he made it in view of his knowledge of the defendant and his testimony in the former trial in a civil suit in which he had acted as counsel; that said statement was not made in the presence of the jury, but in private conversation between the judge, district attorney, appellant's counsel and the district clerk; that the remarks were of a jocular character, and without any knowledge of the facts in the case at bar. After this, the district attorney stated he had discovered that he could corroborate the accomplice and would not dismiss the case. While the remarks in question, under the circumstances, were not proper and should not have been made, yet, as was held in Gaines v. State, 38 Tex. Crim. 202, said remarks did not disqualify the judge from trying said cause. Such remarks emanating from a judge will cause a closer and more rigid scrutiny of the errors complained of.

Appellant made a motion to continue the case, based on the absence of three witnesses, to wit: George S. Walton, John Kennerly and W.C. Puckett; the first two alleged to be residents of Travis County, and the latter formerly a resident of said county, but that he had changed his residence, and his present abode was unknown. It appears that defendant caused a subpoena to issue for George S. Walton on November 3, 1902, which was served. Subsequently, on November 29th, appellant caused another subpoena to issue to said Walton, commanding him to bring with him a certain note which had been written by Charles Edwards, State's witness, to certain parties named in said application. On disobedience of said subpoena it appears attachment was issued on the 6th day of December to Jefferson County for said witness, returnable on December 9th, the day the case was set for trial. At the time of trial said process had not been returned, and witness was not in attendance on the court at the trial. On October 29th a subpoena was issued by the State for said witness Puckett, to Travis County, which was served on November 1st. That another subpoena was issued by the State for said witness November 15th, but same was not served, it being stated that witness was in Oklahoma. On December 6th the State issued process for Kennerly, which was served, and said witness was not in attendance on the court. Appellant relied on the State's process for the two last named witnesses. Appellant says he expected to prove by witness Walton the possession of a certain letter or note which was written and sent out of jail by Charles Edwards to one H. Joseph, an Assyrian. Said letter demanded the payment of $250 by certain Assyrians, including appellant. In case of refusal, Edwards proposed to give them away, etc. It occurs to us, under the circumstances of this case, that this was material testimony as going to the credit of the witness Edwards; and inasmuch as the application shows that demands were made of others for payment of money, it was no answer to the proposition that the contents of said letter was permitted to be proven by other witnesses. The witness was not certain that Bismarck's name was in the letter. It also occurs to us that the testimony of Puckett was material. On the part of the State, the proof showed that the sale of the goods was made to appellant by Edwards in the town of Manor, some fifteen miles from Austin, about 8 o'clock in the morning; and by Puckett it was proposed to be shown that he saw Edwards at Manor endeavoring to sell goods to other parties, about 11 o'clock on said day. This testimony would directly controvert the testimony of the State's main witness; and would, furthermore, tend to show that appellant bought the goods in due course of trade, inasmuch as Edwards was endeavoring to sell the goods to other parties, whereas Edwards' testimony shows that he took the goods to appellant early in the morning and disposed of them to him as prearranged between them. It does not occur to us that the testimony of the witness Kennerly is material; but the testimony of the other two witnesses was material, and the diligence used appears to have been sufficient.

The State was permitted to prove, over appellant's objections, two other cases of burglary and theft from another party, to wit, George Criser, who had a store in the city of Austin, both subsequent to the alleged burglary and theft in this case. The indictment alleges, and the proof shows, that the offense here charged, if committed, occurred on the 1st of July. The other two offenses admitted in evidence occurred on the 10th and 18th days of July. In every case of receiving stolen property it is incumbent on the State to establish two propositions: (1) That the property was stolen, and (2) that the party charged with receiving the same, did so with guilty intent; and all evidence tending to prove either of these propositions is admissible. As to these subsequent offenses, it does not occur to us that it was any part of the res gestae of the offense charged against appellant, or any part of a system showing that Edwards, because he committed said subsequent thefts, committed the theft in question. The bill shows that appellant was present at the commission of the two subsequent thefts, and evidently participated therein; that is, it shows he remained in the alley at the time said theft was being committed, and in one of said thefts received the goods in a wagon, and in the other was there for the purpose of receiving the goods, but Edwards was detected and arrested before the completion of the theft. If by this it was intended to introduce evidence for the purpose of showing guilty intent of appellant in receiving the goods charged to have been burglarized in this case, it occurs to us it is too remote. Mr. Wharton in his work on Criminal Evidence, section 44, says: "Guilty knowledge being the gist of the offense of receiving stolen goods, receptions about the same time of other goods of the same character, stolen from the same person or persons connected with him, may be put in evidence on the trial of an alleged receiver; but the other occasions on which the stolen property was received must not be so far removed in point of time as to form entirely different transactions." In this case the goods were not taken from the same person charged in the indictment, or persons connected with him; and, moreover, they were no part of the same transaction, but subsequent thereto, and were so removed in point of time as to form different transactions. Accordingly the testimony was not admissible.

Appellant insists that, if the evidence shows any offense was committed by Edwards, it was not theft on his part, but embezzlement, inasmuch as, according to his testimony, Angelo Franzetti, who participated with him in the offense, had full custody of the store, he having the key thereto, and the goods being at the time in his possession. On this subject the proof shows, without any controversy, that Angelo Franzetti was the brother of Carlo Franzetti, who was the owner of the store, and that Angelo had as full management and control of the store, and as full authority to dispose of the goods, as Carlo, the owner. It has been held in a number of cases (and this is the received doctrine) that temporary custody, as of a servant, is not a bailment, and that the taking by such servant is theft, and not embezzlement. See Livingston v. State, 38 Tex.Crim. Rep.; Roeder v. State (Texas Crim. App.), 45 S.W. Rep., 570. However, it occurs to us that the case at bar, in its facts, goes much farther, as to the management and control of the said store and goods, than either of the cases cited. Carlo Franzetti, the owner, testified that his brother Angelo worked for him as a clerk, and had full authority to sell goods out of said store, and to receive the money therefor, and slept in the rear room of the store; that he had authority to draw checks, and knew the combination of the safe. However, he says that if Angelo went in with Edwards to take the goods at night, sell them, and divide the proceeds, as testified by witness Edwards, he acted without his authority and consent. Of course, Angelo was not entitled to the possession of said goods as against Carlo, the owner, but he seems to have had as much control of the store as his brother. He was more than a mere servant. He was intrusted with the management and control of the store and goods. And being in possession, his disposition of them, if he disposed of them as testified by the witness Edwards, was a breach of his trust as a bailee of said goods, and not a theft of the same. Consequently appellant could not be convicted in this case of receiving stolen property.

It is also contended that the State failed to prove the receipt by appellant of a sufficient amount of goods charged in the indictment to constitute a felony. The record shows some confusion on this point, and the court should certainly have submitted a charge on misdemeanor, in view of the testimony.

It is further strongly urged that the proof is not sufficient to sustain a conviction because there is no evidence tending to corroborate the accomplice. We would remark, in view of the contradictory testimony of the accomplice, and his impeachment, if there ever was a case in which the strict rule of law with reference to corroboration should be applied, this is such a case; and, in our opinion, the evidence of corroboration is not sufficient. True, appellant, according to the testimony of Meredith, a State's witness, while he was in jail, and after he had been warned, stated that he bought from Edwards, at his store, in Manor, the goods charged in the indictment, and paid him $40 for the same; that Edwards brought them in a buggy, and told him that a friend of his was about to break in Austin, and he was selling them cheap. However, when he was asked if he believed the statement of Edwards, appellant said "No." Now, he may not have believed the statement of Edwards, but it does not occur to us that this simple reply would be evidence sufficient to show guilty knowledge that the goods were stolen property. He may not have believed the statement of Edwards, and yet this would not imply guilty knowledge on his part that the goods were acquired by theft. And from our examination of the record, this is all the testimony bearing on this question of corroboration.

Appellant raises other questions, but we do not deem it necessary to discuss them. For the errors pointed out, the judgment is reversed and the cause remanded.

Reversed and remanded.