Duffer v. State , 136 Tex. Crim. 199 ( 1938 )

The offense is theft; the punishment, confinement in the penitentiary for four years.

On the 22nd of December, 1936, R. A. Leonard lost about 5200 pounds of cotton seed which he had stored in the field of J. W. Coffey. On the 23rd of December, 1936, appellant drove to the Plainview Cotton Oil Mill in a green Chevrolet truck. The truck was loaded with 5140 pounds of cotton seed, which appellant sold to the mill company under the name of J. C. Davis of Sudan, Texas. It is observed that appellant's name was L. A. Duffer. After discovering the theft of his cotton seed Mr. Leonard notified the officers. Truck tracks were found in the vicinity of the theft and were shown to have been made by tires similar to those appellant had on his green Chevrolet truck. During the time the officers were investigating the theft they had a conversation with appellant. At this juncture we quote from the testimony of one of the officers, as follows: "On the occasion I talked with him (appellant) in this county I wanted to look at his truck, look over his truck and talk to him. And he asked me after I talked to him, asked a few questions. He says 'What is the matter?' I told him some cotton seed had been stolen. We talked a little while and he asked 'Whose cotton seed?' and I told him Mr. Leonard's. So he says 'Come here,' standing at the back of his truck. I walked back to the truck. He says 'If I go pay Mr. Leonard for these cotton seed and satisfy him would you and Mr. Lloyd be satisfied? Will you drop the charges and not do anything about it?' I says 'No, I wont.' "

Appellant made this declaration before he had been accused of committing the theft. An investigation by the officers disclosed that there was no man in Sudan by the name of J. C. Davis.

Testifying in his own behalf, appellant denied that he had any connection with the theft. He said that when he was accused of the offense he told the officers that he would rather pay one hundred dollars than be brought up before the court.

We deem the evidence sufficient to support the conviction.

It is shown in bill of exception No. 1 that appellant requested the court to withdraw from the consideration of the jury his statement that he would rather pay one hundred dollars than be "bothered with the case." The bill is qualified by the court, as follows:

"Said testimony was brought out by defendant's counsel while cross-examining the witness Hutson, and the defendant testified to the same facts."

In view of the qualification, the fact that appellant might have been under arrest is immaterial. Having elicited the testimony and further having testified to the same facts, appellant is in no position to contend that the court was in error in refusing to withdraw such testimony.

Failing to find reversible error, the judgment is 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.