
    MODICA v. STATE.
    (No. 6868.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.
    On Motion, for Rehearing, May 23, 1923.)
    1. Larceny <@=>30(I) — Description of property held sufficiently definite.
    An inViictment for theft, describing the property as four cases of oil clothing, six cases of tobacco, five sacks of beans, and one case of milk, giving the value of each, held not bad for want of more definite description.
    2. Criminal law <@=>l 172(8) — Error in charge as to burglary harmless, where accused acquitted of burglary.
    Exceptions to the charge relating to burglary -will not be considered, where accused was acquitted of burglary.
    3. Larceny <@=»32(6) — Corporation may be named as owner in indictment.
    There is no rule of law inhibiting the naming of a co.rporation as the owner in an indictment for theft.
    4. Indictment and information <@=>132(3) — No election between counts required, where evidence supports each.
    Where there is evidence supporting the averment in each of several counts of an indictment, the state is not required to make an election.
    5. Criminal law <@=783(2) — Instruction upon other offenses held proper.
    In a prosecution for theft, where the state introduced testimony that there had been a burglary of freight cars belonging to the railroad company named in the indictment, and also introduced evidence tending to connect accused with the burglary and with the possession of the fruits of that crime, also showing that he had been indicted for that offense and that he had also been indicted for other alleged thefts and burglaries, an instruction that the indictments for the other offenses of burglary and theft could be considered alone upon the issue of the credibility of the accused, who testified in his own behalf, and as bearing upon the system, according to the state’s theory, in which the offense in trial was committed, held proper.
    6. Criminal law <@=>1090(7) — Refusal of continuance not reviewahie, in absence of bill of exceptions.
    Refusal of continuance, in absence of bill exceptions taken to the refusal, is not reviewable.
    7. Larceny <@=>68 (3) — Whether possession of railroad cars was in local agent held for jury.
    In prosecution for theft, held, that whether the local agent of the railroad company named in the indictment was in possession of the cars broken into, which were in the railroad yards, was for the jury.
    8. Criminal law <©=>! 169(5) — Improper answer - to question held not reversible, where answer excluded.
    - In theft prosecution, where witness testified that the truck which was used in stealing the property belonged to him, and that it had been used on other occasions by the same parties at night, and, in response to accused’s cross-examination, said that he did not know the truck was being used for the purpose of stealing but thought it was being used for delivering moonshine whisky, such answer, although improper, was not ground for reversal, where it was excluded by the court.
    9. Criminal law <@=>742(2)-On conflicting evidence'question of whether witness was accomplice is for jury.
    In prosecution for theft, where it appeared that accused was using truck of one S. in committing the offense, but S. said that he did not know of such use, the court was not required to tell the jury that, as a matter of law, S. was an accomplice.
    10. Criminar law <@=>412(3) — Declaration of accused to another 'after arrest held admissible.
    In prosecution for theft, where there was testimony that accused and one W. acted together in committing the offense, and both were arrested and had a common interest in escaping punishment, held it was proper to admit evidence of declarations of accused to W. showing that accused invited W. to go and get some other property in order to pay the lawyer’s fee, as such evidence did not tend to connect accused with any other offense but connected him with the instant offense by showing that he was willing to commit another in order to escape punishment.
    11. Witnesses <@=>360 — Prosecution can shew witness’ good character when attacked.
    Where accused, in his cross-examination of a witness, asked him if he had not been convicted of a certain offense while in the army and if he had not served a term in Leavenworth and sent to the federal penitentiary, it was proper for the state to prove by the same witness that he had been honorably discharged from the army.
    12. Crimimai law <@=>511 (4) — Accomplices’ testimony held corroborated.
    In prosecution for theft, testimony of' accomplices was sufficiently corroborated by testimony of other witnesses that a part of the property was found on accused’s premises, and the remainder was found where it had been thrown out of railroad cars preparatory for removal, and accused and one of such accomplices was present with a truck, and accused fled and tried to hide when the officers arrived.
    On Motion for Rehearing.
    13. Criminal law <@=>878(1) — Verdict cannot find accused guilty on two counts.
    A verdict that the jury find the accused “guilty of theft of property of $50 or over in value of counts 2 and 5 of the indictment and assess his punishment at confinement in the penitentiary for seven years” was invalid, as the jury thereby found accused guilty of two felonies, and the punishment fixed was more than double the minimum for either count of which they found him guilty.
    
      Appeal from District Court, Jefferson County; W. H. Davidson, Judge.
    John Módica was convicted of theft, and appeals.
    Reversed and remanded.
    Howth & O’Eiel and Lamar Hart, all of Beaumont, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for theft; punishment fixed at confinement in the penitentiary for a period of seven years.

The record contains many pages, and the bills of exceptions are numerous. However, they have all been considered in connection with the brief of the appellant.

Some matters are mentioned in the brief and motion for new trial which are not reviewable because not preserved by bills of exceptions. See Vernon’s Tex. Crim. Stat. vol. 2, p. 536, note 20, and cases cited; also Sharp v. State, 71 Tex. Cr. R. 633, 160 S. W. 369. It would require more words than we feel justified in incorporating in the opinion to discuss in detail all of the matters presented.

The indictment described the property as four cases of oil clothing, six cases of tobacco, five sacks of beans, and one case of milk, giving the value of each. The indictment was not bad for want of more definite description. Branch’s Ann. Tex. Penal Code, § 2424; Johnson v. State, 42 Tex. Cr. R. 104, 58 S. W. 69, and other cases listed by Mr. Branch.

Several exceptions to the charge relate to the subject of burglary. The jury acquitted the appellant of burglary, and the references to it passes out of the case.

The indictment contains several counts. The first count charges the burglary of a railroad car, the property of F. W. Nason; the second count charges theft of the same property from F. W. Nason; the third count charges the receiving and concealing of the same property, knowing it to have been stolen; the fourtli count charges burglary of a railroad car occupied and controlled by the Beaumont, Sour Lake & Western Railway Company, a corporation; the fifth count charges theft of the same property from the Beaumont, Sour Lake & Western Railway Company, a corporation; and the sixth count relates to receiving and concealing of the same property, knowing it to have been stolen by some person unknown to the grand jury.

In submitting the case to the jury, the court embraced the two counts charging burglary and the two counts charging theft. The jury returned the following verdict:

“We, the jury, find the defendant, John Módica, guilty of theft of property of $50 or over in value, in counts 2 and 5 of the indictment and assess his punishment at confinement in the penitentiary for seven years.”

The'court entered a judgment finding the appellant guilty of theft.

In the fifth count, the owner was named as the Beaumont, Sour Lake & Western Railway Company, a corporation. There is no rule of law which inhibits the naming of a corporation as the owner in an indictment for theft. There is nothing in the cases of Green v. State, 82 Tex. Cr. R. 426, 199 S. W. 623; Hartman v. State, 85 Tex. Cr. R. 582, 213 S. W. 939; White v. State, 28 Tex. Cr. R. 71, 12 S. W. 406; or other cases cited by the appellant which is opposed to this rule. On the contrary, the cases of White v. State, 24 Tex. App. 231, 5 S. W. 857, 5 Am. St. Rep. 879, and Thurmond v. State, 30 Tex. App. 539, 17 S. W. 1098, cited by appellant, recognize the sufficiency of an indictment naming the corporation as the owner. They suggest that a -better practice would be to place the ownership in an individual. The practical value of this suggestion is referable to the proof rather than the averment, in that the proof of want of consent is much easier when the averment places ■ the ownership in an individual. On this subject, see Osborne v. State (Tex. Cr. App.) 245 S. W. 928; also Bishop’s New Crim. Proc. § 138; Cyc. of Law & Proc. vol. 25, p. 95; Wharton’s Crim. Law, § 1180.

After the trial had progressed for several days, the state dismissed the counts in the indictment charging the fraudulent receiving and concealing of stolen property. Upon this dismissal, appellant made a motion in writing to require the court to elect, as between the several counts charging burglary and theft. There being evidence supporting the averment in each of the counts, the court was not in error in refusing to require the state to make an election. Branch’s Ann. Tex. P. C. § 2435; Thompson v. State, 32 Tex. Cr. R. 265, 22 S. W. 979; Robinson v. State, 56 Tex. Cr. R. 62, 118 S. W. 1037; Bishop’s New Crim. Proc. vol. 1, § 451. In the case of Keeler v. State, 15 Tex. App. 113, cited by appellant, the practice pursued in the instant case is commended in the opinion written by Judge Hurt. The annotations of that case in Rose’s Notes on Texas Reports (1910 Ed.) vol. 5, p. 349, approve the rule announced in the Keeler Case.

On the trial, the state introduced evidence tending to show that the witness Scott had stolen property from a mercantile establishment and that the appellant had received it. After the dismissal of the counts charging the receiving of stolen property, the court instructed the jury that this evidence of the witness Scott was not to be considered against the appellant. The court had stated in admitting this evidence that it was on the count in the indictment charging the -receiving and concealing of stolen property. The state introduced testimony to the effect that on the 7th of August there had been burglary of freight cars belonging to,the railroad company named in the indictment, and also introduced evidence tending to connect the appellant with the burglary and also with the possession of the fruits of that crime, also showing that he had been indicted for that offense and that he had also been indicted for other alleged thefts and burglaries. The court instructed the jury that the indictments for the other offenses of burglary and theft could be considered alone upon the issue of the credibility of the appellant who testified as a witness in his own behalf and as bearing upon the system, according to the state’s theory, in which the offense on trial was committed. We do not find any bill of exceptions to the admission of this testimony, and we think the manner in which the jury was instructed with reference to it is not subject to the objections made.

A system of railroads known as the Gulf Coast Lines extends from New Orleans to Brownsville. One of the connecting lines constituting this system is the Beaumont, Sour Lake & Western Railway Company. A part of this line is situated in Jefferson county and in the city of Beaumont, where it maintains yards and terminals. The local agent of that company at Beaumont at the time the offense was charged to have taken place was F. W. Nason. In the yards of the Beaumont, Sour Lake & Western Railway Company situated at Beaumont there was car No. 2215, belonging to the New Orleans, Texas & Mexico Railroad Company, and car No. 262321 belonging to the New York Central Railroad Company. These cars were standing in the yards of the Beaumont, Sour Lake & Western Railway Company at Beaumont on the night of the 17th day of August, 1921. They had each been loaded with merchandise delivered to that railway company for shipment. The employees of the railway company had loaded the cars .and placed seals upon thém, and they were placed in the yards in order that they might be taken to their destination. The merchandise was checked into the cars by an employee of the company, who was a witness, and who had personal recollection of the property. On the night of the 17th of August these cars were broken open, and the merchandise described in the indictment was taken from them. The parties were caught in the act of removing the stolen property, and the witness Williams, who testified as an accomplice, and the appellant were identified as being present at the time. They were both arrested on the ground.

The stolen property was recovered. A part of it was on the ground near the truck and the cars from which the property was taken, and the remainder was found on appellant's premises in the house occupied by McOloney. The value of the property was proved.

In appellant’s brief complaint is made of the .refusal of the court to grant the application for continuance. We think the court was warranted in overruling it- for want of diligence to secure the absent witness. However, we find no bill of exceptions taken to its refusal, and for that reason the matter is not presented for review. Branch’s Ann. Tex. P. O. § 304.

In instructing the jury upon the possession or ownership, the court stated, -in substance, that by ownership or possession was meánt the actual care, control, and management thereof; that the possession might be either actual or constructive; that constructive possession was that possession which the lav annexes to the legal title or ownership of property when there is a right to the immediate actual possession. As applied to the facts of the instant case, this charge wa's not erroneous in our judgment. The railroad ears were in the yards of the railroad company, all of whose property situated at Beaumont was under the care, control, and management of the agent, Nason. In them there had been placed property which was in his possession as agent and which belonged to the railway company; and, according to his directions, the cars had been sealed and were ready for shipment. He was not present at tile cars at the time the seals were broken by the appellant and his companions, but the property was still under his care, control, and management. It was not improper for the jury to understand that his absence from and immediate touch with the cars was not incompatible with his possession. See Cameron v. State, 44 Tex. 652; Webb v. State (Tex. Cr. App.) 44 S. W. 498; Parks v. State (Tex. Cr. App.) 89 S. W. 1064.

Nason was the agent at Beaumont of the Beaumont, Sour Lake & Western Railway Company, and according to his testimony and that of other witnesses called by the state, he had care, control, and management of the ears and the property therein at the time the offense was committed. The appellant introduced testimony that, according to the custom prevailing among railways in such cases, cars loaded and ready to be taken onto a train were under the control of the yardmaster. Much of the statement of facts is devoted to this subject. The court in its charge told the jury that if they believed the property was not under the care, control, and management of Nason or the Beaumont, Sour Lake & Western Railway Company to acquit the appellant. This sufficiently protected the appellant’s interests on the issue of ownership.

Williams testified that he and the appellant and another man whom he did not know went in a truck to the cars in question and broke the seals; that the appellant entered the ears and threw the property out upon the ground; that a part of it was loaded on the truck and taken to the home of the appellant and placed in appellant’s garage on his premises; that he and the appellant returned for the remainder and were apprehended by the of-fleers just as they were about to place the remainder of the property on the truck. Several other witnesses testified to the apprehension and to appellant’s presence at the^truck at the time. He was arrested at a point nearby and, according to the state’s testimony, was hid in the weeds.

The witness McOloney, who occupied a house upon appellant's premises and adjoining that of appellant, testified to facts showing that he and the appellant and Williams1 had conspired to commit the offense, and that it was contemplated that he should drive the truck, but was unable to do so because of toothache; that the first load of the stolen property was brought by the appellant and Williams, according to a prearrangement, to the house on appellant’s premises, which was occupied by the witness McOloney.

The witness Scott testified that the truck which was used in stealing the property belonged to him; that it had been used on other occasions by the same parties at night. In response to a question by appellant’s counsel on cross-examination, the witness said that he did not know the truck was being used for the purpose of stealing, but thought it was being used for delivering moonshine whisky. The question propounded is not given in the bill of exceptions. An objection was made to the answer. An objection would not have reached it. No motion to exclude it seems to have been made. However, we infer from the brief of the appellant that the court did exclude it. The appellant’s position, however, is that, in spite of the exclusion, it must work a reversal. Neither the trial judge nor the prosecuting attorney was in any sense responsible for the objectionable declaration of the witness. We cannot sanction the view that a reversal must result.

Both the goods found on the ground and those which were taken to the appellant’s premises were identified. It was shown by sufficient evidence that the value of the goods exceeded $50. The subject of value was sufficiently embraced in the court’s charge.

The court instructed the jury that both Williams and McOloney were accomplices as a inatter of law. Touching the witness Scott, the court properly left to the jury to determine whether he was an accomplice or not. The appellant was using his truck, but Scott said that he did not know that he was using it for the commission of the offense. This raised an issue of fact, and the court was not required to tell the jury that, as a matter of law, .Scott was an accomplice.

There was no error in admitting the declarations of the appellant to the witness Williams. We think the principle controlling in Windham v. State, 59 Tex. Cr. R. 366, 128 S. W. 1139, is not applicable. The testimony in the instant case was that the appellant and Williams acted together in committing the offense. They were both arrested. They had a common interest in escaping punishment, and the appellant invited the witness to go- and get some other property in order to pay the lawyer’s fees. It does not tend to connect the appellant with any other offense but connects him with the present offense by showing that he was willing to commit another in order to escape punishment.

Appellant, in his cross-examination of the witness McOloney, asked him if he had not been convicted of a certain offense while in the army and if he had not served a term in Leavenworth and been sent to the federal penitentiary. The state, by the same witness, proved that he had been honorably discharged from the army. We think the cross-examination rendered the evidence competent.

The verdict of the jury finds the appellant guilty of theft as charged in the secopd and fifth counts of the indictment. This was the same transaction. The property described in both counts belonged to the railway company. Nason was the railway company’s agent. ]Etis-possession was the possession of the railway company. The court properly entered the judgment convicting the appellant of theft. We think that the case does not come within the rule in Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893, nor in Bishop’s New Crim. Proc. §§ 889-899. He was not convicted off two offenses. The conviction is for but one.

Appellant presented the theory of alibi,, which was supported by his own testimony and that of others. He claimed that, t>n the night that the burglary took place, he went to the home off his sister at an early hour, where one of the family was sick; that he-remained there until about 3:30 on the following morning; that in going to the house-he rode on the street ear, but that in returning he intended going on foot, it being too-early for the street car; that his attention was attracted by the firing of a gun; that thinking it was a fire he approached the place, and when' he got within four or five-blocks of the place where the cars were standing, he stepped aside to respond to a call of nature; and that wliile there he was taken in custody by the officers. He denied the conspiracy with the negroes McOloney and Williams and all connection with the offense. His theory of alibi was supported by his wife and his sister -and also another witness.

At the time of his -arrest, appellant stated, that he had spent the night at the home of his sister. The court instructed the jury that the burden was upon the state to refute the truth of this declaration, and the jury was-also instructed that, if they believed the appellant was at the home of his sister, or iff on that subject they had a reasonable doubt,, they would acquit him unless they found him. guilfy as a principal upon the evidence off conspiracy in connection with the other testimony. The issue of principal upon the theory of conspiracy was raised by the evidence of the accomplices and supported both by the-locality of the goods stolen and the testimony-touching the presence of the appellant in company with Williams at the place where the truck and the stolen goods were found.

The sufficiency of the evidence of the corroboration of the accomplices appears not debatable. By other witnesses the burglary and theft were proved. A part of the property was found upon the premises of the appellant, where it had been transported in a truck. The remainder was found where it had been thrown out of the ears preparatory for removal, and the appellant and one of the accomplices, who testified for the state, were present with the truck, which, according to the accomplice, was there for .the purpose of removing the remainder of the property. When the officers arrived, appellant, according to some of the testimony, fled and hid, and in this position he was found when arrested at a point near the scene of the crime. These facts coming from the mouths of witnesses other than the accomplices are sufficient to comply with the demands of the statute that a conviction shall not be had upon the testimony of an accomplice, unless there be other testimony tending to connect the accused with the commission of the offense.

None of the matters presented for review being, in the opinion of the court, of a nature to authorize a reversal of the judgment, an affirmance is ordered.

On Motion for Rehearing.

LATTIMORE, J.

The verdict rendered by the jury herein is as follows:

“We, the jury, find the defendant, John Módica, guilty of theft of property of $50 or over in value in counts 2 and 5 of the indictment and assess his punishment at confinement in the-penitentiary for seven years. G. T. Moore, Foreman.”

From this it appears that the jury have found appellant guilty of two felonies. This they had no right to do under our settled procedure. O’Bryan v. State, 27 Tex. App. 389, 11 S. W. 443; Crawford v. State, 31 Tex. Cr. R. 54, 19 S. W. 766; Carr v. State, 36 Tex. Cr. R. 3, 34 S. W. 949; Pitts v. State, 40 Tex. Cr. R. 667, 51 S. W. 906; Lovejoy v. State, 40 Tex. Cr. R. 89, 48 S. W. 520.

It is the duty of the courts to indulge every reasonable intendment in upholding the verdicts of juries. In doing this we have applied in some cases general verdicts to some one count submitted, where more, than one appear, provided the punishment fixed be such as that it can be concluded that the jury intended to punish in but one case. General verdicts with minimum punishments have also been applied to good counts in cases where others were defective, but we know of no case in this state which upholds the doctrine that a verdict specifically finding the accused guilty under more than one count in a felony case, which affixed a punishment greater than the minimum, could be upheld.

The statutes of our state and numerous decisions of this court make it the duty of the trial courts to decline to receive informal or insufficient verdicts, and direct that the jury be told upon trials, where plural counts are submitted to them in the charge, that they must say by their verdict of which count, if any, the accused be found guilty. If it be argued that in certain cases separate counts in indictments charging theft of the same property from different owners be permissible or commendable practice — we readily agree, and also to the proposition that to the legal mind this might present but phases of the same transaction, so pleaded to meet the proof as it might develop; but the jury are not lawyers and beyond question injury might arise in many cases if we attempt to uphold their action upon the hypothesis that they understood the necessary legal procedure in matters which the court failed to tell them about in his charge. In this case the jury were not told thal; they could convict only under one count, nor that they must specify in their verdict of which count, if any, they found the accused guilty. They plainly find him guilty under two counts. They fixed punishment at more than double the minimum for either count of which they find him guilty. The judgment entered by the learned trial court does not attempt to fix guilt under either one count or the other but broadly adjudges appellant guilty of felony theft.

Believing the jury without authority to return a verdict finding the accused guilty of two felonies, and that the record in this case reflects that such course was pursued herein, appellant’s motion for rehearing will be-granted, the affirmance herein set aside, and the judgment of the trial court now reversed, and the cause remanded. 
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