Nagel v. State (71 S.W.2d 285, 1934)

LATTIMOEE, Judge.

Conviction for receiving and concealing stolen property; punishment, five years in the penitentiary.

We deem it needless to set out in detail the testimony, which sufficiently shows theft of .automobile casings of value enough to make same a felony and the' receipt and concealment of same by appellant with knowledge that same had been so stolen.

Appellant brings forward five bills, of exception, each based on the action of the trial court in admitting in evidence testimony as to the result of a search by officers of a house. at 610 Delmar street, San Antonio. We find no testimony supporting the claim that the house in question was in possession or control of appellant. Same belonged to Mr. Hardy, and was part of premises occupied and used as a residence by Mr. Hardy and his wife, and also by Hardy, Jr., and his wife. . Young Hardy testified that hq alone gave appellant permission to put the casings in said house for a day or two ; ■ that appellant told him he had a place to which he would remove them. • He further testified that appellant asked if he might put' a lock on the house, apparently fearing theft of the casings, and that he told appellant he had no objection'to this. The court below told the jury in his charge that Hardy, Jr., was an accomplice. Appellant did not testify or offer other: proof of any right of possession or control of said house. Authorities too numerous to mention and which need not be set out hold that one who has no right of ownership, general or special, and no right of possession or control, cannot oppose the introduction of testimony of a ■ search of such house or premises. The record shows that Hardy, Jr., gave his permission to the entry and search of said house. None of the bills mentioned is deemed to present error.

We think it worth while to notice but one other point raised. Appellant excepted to the failure of the court to instruct the jury that Hardy, Sr., and one Gonzales, both of whom testified for the state, were accomplices. We have carefully examined and analyzed the testimony of each in the light of and together with all the other facts of the ease, and are of opinion that any claim that either of said parties was shown to have been criminally connected with the transaction to any extent is without support.

Whilé the premises belonged to Hardy, Sr., who was a man nearly 70 years old, still same were also occupied by his son, a man of about 35, and the wife of the latter, both families living together, and apparently having so done for a number of years. Nothing suggests that Hardy, Sr., gave his consent to appellant’s putting the casings in the little house mentioned. He did not know that same were .there until after same were put in said house. The first time he saw appellant after he found out the casings were there, he asked .appellant if they were his, and was assured that they were, and that appellant had a bill of sale and an invoice to same, and that appellant would bring them with him the next time he came. Mr. Hardy did not see appellant again until after his arrest. The casings were found and removed the third day, as we understand it, after they were brought to the place. This would not malee Hardy, Sr., an accomplice. As to Gonzales, he was a Mexican laborer, who was approached by appellant, as he said, about 7 o’clock in the morning; Appellant asked if he wanted work, and, to his credit, Gonzales said he did. Appellant asked if he knew some one with a truck, and Gonzales-went and got one Rodriguez, who bad a truck. Together the two Mexicans went with appellant to a house where he had a number of casings, which he had them to load on the truck and take out to 610 Delmar street; appellant going before and showing ' them the way to the Hardy home. Here they 'unloaded the casings. Not a word to Gon- ' zales or an answer by him or from any other ' witness suggests knowledge or even suspicion on the part of the Mexican, who testified that ' he was paid 35 cents for his work, of the fact that he was moving stolen property. He was • not shown to be an accomplice, and we see nothing in the action of the trial court in not submitting the law of accomplices as related . to these two witnesses. In order to raise the question of the complicity of a witness, there must be some testimony of his criminal connection with the transaction. Newton v. State, 91 Tex. Cr. R. 335, 238 S. W. 649; Plachy v. State, 91 Tex. Cr. R. 405, 239 S. W. 979. Mr. Branch cites many authorities in section 702 of his Annotated P. C. supporting the proposition stated. Among them are Robbins v. State, 33 Tex. Cr. R. 573, 28 S. W. 473; Schwartz v. State, 38 Tex. Cr. R. 26, 40 S. W. 976; Smith v. State, 36 Tex. Cr. R. 442, 37 S. W. 743, each on its facts illustrative of the proposition that mere association with one who is engaged in a criminal enterprise, without some knowledge or community of purpose or interest, will not be sufficient to require a charge on the complicity of such person so engaged in the transaction. We are aware of the fact that each case must be ruled upon its own facts.

Finding no error in the record, the judg ment will be affirmed.