Rogers v. State (6 S.W.2d 359, 1928)

MARTIN, J.

Offense, receiving and con-’ oealing stolen property of over the value of $50; penalty, four years in the penitentiary.

Witness P. Morales had a Ford coupé stolen about 8:30 o’clock p. m. from Washington Park in the city of El Paso in August, 1926. On or about September 7,1926, this car was recovered by the officers of El Paso, and at the time of its recovery it had on it Ford touring car fenders, a different radiator, and no seat at all. It was recovered at the house of one R. D. Callaghan. It was shown by Mrs. Callaghan that the car was brought to her place in August by Femin Morales, who had theretofore rented a little shed room on- the back of her house and seemed to be staying there a part of the time. She further testified that appellant showed up soon after the appearance of the car and ordered Femin Morales to tear the car up; that the top was taken off of same and it was torn up. The appellant was around the car several times prior to his arrest and worked on the car, both alone and in company with others. Three or four days before his arrest, appellant and one Barton brought a Ford touring car one night to her house, which was shown to he a stolen car. She did not see what they did to this Ford touring car, as she went to town, but when she got back it was torn up. Appellant was arrested at the Callaghan home about 9:80 at night, when he drove up in a stripped down Ford. He claimed at the time of his arrest that he had bought the top of the Ford coupé in question to put on his said Ford. It was shown that the number on the Ford coupé in question had been removed and a new number stamped thereon; the new number being identical with the number on the car which appellant was driving when arrested. It was also shown that the Ford touring ear shown to have been stolen and brought in by appellant had at the time of appellant’s arrest neither fenders nor radiator on it.

This is a brief summary of the state’s evidence and we think all these facts and circumstances, taken together, were sufficient to go to the jury and to justify a verdict of guilty. The court authorized an acquittal if the appellants’ only connection with the automobile in question was to purchase the body thereof, even though it may have been stolen and he knew it was stolen. No objections were filed to the court’s charge and with the record in its present condition, with no question raised regarding the submission of other issues which may have been raised by the evidence, the appellant is in no positon to complain at the verdict under the evidence above quoted.

Complaint is made of the reception in evidence of a statement of an ofticer that he received a report that a Ford touring car belonging to a third party had been stolen. This wasi objected to only on the ground that it was irrelevant, immaterial, and hearsay. The bill shows that the witness was permitted to testify that he did receive such a report. He further testified without objection that he recovered that car at the same time and place that he recovered the Ford coupé, and that the Ford touring car was stolen on September 2, 19-26. It is insisted that the testimony exhibited in the bill was proof of an extraneous offense. There was proof of eir-.cumstances tending to show that this Ford touring car had been torn down and some of its parts placed on the Ford coupe in question by appellant and others, and that such Ford touring car had been in possession of appellant. The appellant claiming that his connection with the car in question was innocent, and his intent being an issue, testimony that the Ford touring car was stolen property was admissible. Underhill’s Criminal Evidence (3d Ed.) par. 153; Davison v. State, 12 Tex. App. 215; Branch’s P. C. § 166. The statement shown in the bill was perhaps admissible as preliminary to what followed; but, if it were not, the matter was thereafter fully testified to without objection, and, if there was any error in the admission of the evidence of the fact that he had received a report of a stolen car, such error was cured by the subsequent admission of testimony with reference to such stolen car without any objection from appellant.

Complaints as to arguments of the state’s attorney are without merit, we think. They were legitimate deductions from the evi-* dence, and are not deemed to be of that importance which would justify an extended discussion.

Finding no error in the record, the judgment is affirmed.

PER XÍURIAM. 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.

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