
    WOOL v. STATE.
    (No. 4546.)
    (Court of Criminal Appeals of Texas.
    March 6, 1918.)
    1. Receiving Stolen Goods <§=>8(1) — Burden or Proof.
    Where one accused of receiving stolen goods set up that he bought the goods without knowledge or notice of the theft, the state had the burden of showing that the theory of purchase was false. (Per Davidson, P. J.)
    2. Receiving Stolen Goods <©=3 — Elements of Offense.
    If the accused purchases goods in good faith, he is not guilty of receiving stolen goods, but, if he knew of the theft, the purchase would be no defense. (Per Davidson, P. J.)
    3. Criminal Law <§=>814(8, 9) — Receiving Stolen Goods — Instructions—Defensive Theories.
    Where one accused of receiving stolen goods advanced the theory of purchase in good faith, such theory’ called for a charge on that subject as well as an acquittal unless disproved. (Per Davidson, P. J.).
    4. Criminal Daw <§=419, 420(11) — Receiving Stolen Goods — Evidence—Hearsay.
    In prosecution for receiving stolen goods, testimony of the sheriff of another county, who arrested the actual thief, as to what the thief said as to his having burglarized various stores, and to the effect that such thief was the most notorious burglar and expert in that line of crookedness in that section of the country, was inadmissible as hearsay, under an indictment alleging that the thief was to the grand jurors unknown. (Per Davidson, P. J.)
    5. Receiving Stolen Goods ⅞=>7(3) — Indictment — Requisites and Sufficiency.
    An indictment for receiving stolen goods should allege either the name of the thief or that his name was to the grand jurors unknown.
    ■6. Criminal Law <§=>419, 420(8) — Evidence-Receiving Stolen Goods — Hearsay.
    Testimony of a witness as to what accused’s ■ex-partner told him after dissolution of the partnership, as to a conspiracy between the partners to receive stolen go'ods_, was inadmissible •against one accused of receiving stolen goods. (Per Davidson, P. J.)
    7. Criminal Law <§=>556 — Evidence — Con-CLUSIVBNESS ON PARTY INTRODUCING EVIDENCE.
    Where the state puts in exculpatory statements, they will be'taken as true until the state •discharges the burden of proving them ' untrue. <Per Davidson, P. J.)
    8. Criminal Law <§=>372 (1) — Evidence — Other Offenses — Receiving Stolen Goods.
    In a prosecution for receiving stolen goods, where accused relied on the theory of purchase in good faith, the state should have been permitted to show a long course of dealing with one accustomed to burglarize stores, by which accused purchased such stolen goods, on the theory that a series of acts of the nature of that involved in the offense charged may be proved to determine intent. (Per Morrow, J.)
    Prendergast, J., dissenting.
    Appeal from District Court, Wichita County; Wm. N. Bonner, Judge.
    J. Wool was convicted of receiving stolen goods and he appeals.
    Reversed and remanded,
    Martin & Oneal, of Wichita Palls, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

One count of the indictment charged appellant with theft of property from Viles, and the other with receiving stolen property from some; party to the grand jurors unknown. These transactions are alleged to have been committed on the; 25th of October, 1916. The conviction was for receiving stolen property.

The testimony for the state is' to the effect that a small quantity of the goods claimed to have been taken out of Viles’ store when burglarized was subsequently found in appellant’s secondhand store in Wichita Falls. The goods were found in possession of appellant between the first and middle of January. Viles lost a greát many goods, under his testimony, but very few were found in possession of appellant which Viles identified. There were a number of other burglaries committed in different localities of the state from about the 12th of July to the 25th of October, in Wise, Childress, Knox, and Wichita counties. There seems to be no claim that appellant had anything to do with any of these. _ The allegation is that he received stolen goods from some party to the grand jurors unknown. There were various objections to the testimony with reference to the other burglaries covering the specified time from the 12th of July to the 25th of October. The goods from some of the stores were not traced to appellant’s possession; that is, he was never found in personal possession of those goods. The state undertook to show by Levine, who was found with most of the stolen goods long after his dissolution of partnership with appellant in another county, that he got said goods from appellant in November. Some of these Levine had sold in Dallas, some in Pt. Worth, and some he carried to Paris and other places. Levine claims 'at the dissolution of their partnership he purchased these goods and carried them away from Wichita Palls to Paris, in Lamar county, and thence to various places, and sol'd them. If' appellant knew the goods were stolen or had' any connection with them in any way, it is by the testimony of Levine. Appellant claims to have bought the goods found in his possession and without the knowledge or notice of the theft.

This was in direct conflict with the theory of the state, and, having put it before the jury, it was necessary for the state to show this theory of purchase false. This might be done by positive or circumstantial evidence.

If appellant bought the goods in good faith, there was no case against him. If he bought the goods with the knowledge of their theft, the purchase would be no defense. Fraud must exist at the time of receiving the goods. Many of the cases are found collated in Mr. Branch’s Ann. P. C. pp. 1365, 1366, 1367. Levine testified in behalf of the state that appellant purchased the goods. He states among other things:

“It was a long time ago that I first saw these goods in Wool’s possession or in the store. I first saw them there after Yiles’ store was burglarized, about three or four months after that; yes, about four months after the store was burglarized. * * ⅜ About these goods, Wool told me that he bought a bankrupt stock; that a fellow—two fellows from Oklahoma—one he told me came about three weeks before; he asked me about buying a bankrupt stock; he could buy a bankrupt stock and sell it cheap. That fellow' came over and asked him about three weeks before. * * * I do not know what month these goods first came to the store; it was a long time ago; two or three or six months, I don’t know. * * * Yes; all of these goods here were brought to our store while I was in partnership with Wool. Yes; Wool and I were both working together when these goods were brought into our store. I did not buy these goods; Wool bought them. Two fellows came there before that and wanted to sell a bankrupt stock. I do not know who they were either, these fellows that come to sell the bankrupt stock; I did not ask their names. I do not know how long these goods were in our store there before Wool bought me out. But I think that this $2,000 worth of goods here, that I got from Wool when he bought me out, they had been in our store there about four months at the time that Wool bought me out. Wool bought me out some two months before .Christmas. But these goods that I got from Wool, these goods here, had been in our store something like six months before Christmas. * » * As to how long it was before I left here that I saw this tall dressed-up man, or before I sold out to Wool that I saw him, will say that I did not see him. I did not see any tall dressed-up man. I saw one about three weeks before. He came to make arrangements. He wanted to sell some stock, and Wool said he was going to le.t it go, and then the man came back, and Wool made a deal with him.”

The purchase theory in good faith called for a charge, as well as an acquittal, unless shown false. Stanfield v. State, 73 Tex. Cr. R. 292, 293, 165 S. W. 216; Grande v. State, 37 Tex. Cr. R. 54, 38 S. W. 613. Branch’s Ann. P. C. p. 1368. As a matter of course, there must be knowledge of the fact the goods were stolen at the time of the reception. Branch’s Ann. P. C. p. 1367, for cases.

There is a bill of exceptions- reserved to the testimony of the sheriff of Childi’ess county, as to statements of a party named McCall whom he had arrested for the burglary of Galbraith’s store, in August, 1916. At the time of the first arrest he found some of the goods from Galbraith’s store in McCall’s possession.. McCall was placed in jail in Wichita Falls and escaped. Later he- was arrested in Nolan county. In December, 1916, while a- prisoner at Sweet-water, McCall and the sheriff of Childress county had a conversation, in which McCall made statements to the effect that he had committed various and sundry burglaries in divers places, and that “some Jews in Wichita Falls handled” the goods for him. Pursuant to McCall’s statement, the sheriff'of Childress'county and others found some of the indicated goods- in possession of appellant in Wichita Falls. The conversation occurred on December 26th. This officer testified that, in pursuance to McCall’s statement, about January 6th he found some- of the goods in appfelliant’te store. It seems the only goods found in appellant’s store were taken from the stores of Yiles and Galbraith. None of the goods, so far as the record discloses, as the writer recalls, taken from the other burglarized stores, were in appellant’s possession. Appellant- was not present at the time the conversation occurred and knew nothing about it. Other evidence was admitted that McCall, in another county, committed a theft, and perhaps a burglary in connection with it, of 2,500 skunk skins. It was not sought to connect appellant with this transaction so far .as the writer can ascertain from the record. It was also testified, over objection, that McCall was the most notorious burglar and expert in that line of crookedness in that section of the country.

Various and sundry objections were urged to this testimony, which should have been sustained. All the authorities, so far as the writer is aware, reject statements of this character. These cases will be found collated in Mr. Branch’s Ann. P. C. p. 1366. In Richardson v. State, 75 S. W. 505, it was held that it was error to admit proof of the declarations of the thief, made in the absence of the defendant, to the effect that defendant had agreed to receive the property. The sheriff of Childress county testified that McCall stated to him that he had. arranged with these Jews to receive stolen property. McCall was a third party, not included in this record or in any way connected with it by any allegation. The indictment alleged that the property was received from some one to the grand jurors--unknown. This was hearsay evidence occurring between the sheriff of Childress--county, and McCall. If appellant received' the goods from McCall, the indictment should have so alleged. The grand jury had full knowledge of that fact when the Indictment was found February 23, 1917. This conversation occurred on December 26, 1916. Some of the goods, under the sheriff’s testimony, from Galbraith and Viles’ stores were found in appellant’s possession about the 6th or 8th of January, 1917. The grand jury knew, or could have known by any sort of diligence, the same facts to which the sheriff of Childress county testified. If McCall had been the party in the indictment mentioned from whom appellant received the goods, his confession might be admissible, not against appellant, but against McCall.

Again, it is the uniform rule that the name of the party from whom stolen goods are received should be stated in the pleading. If that is not possible, then the grand jurors may allege the name to be unknown. In State v. Perkins, 45 Tex. 10, Judge Moore, who delivered the opinion, uses this language:

“The person from whom they were received must also be alleged in the indictment.”

Quite a number of these cases are collated by Mr. Branch’s Ann. P. C. p. 1367. He thus states the rule:

“If the evidence makes it apparent that the grand jury knew, or could have ascertained by the use of reasonable diligence, the name of the party from whom the property was received, a conviction will not be sustained if the allegation is that such person was unknown. McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Williams v. State, 69 Tex. Cr. R. 163, 153 S. W. 1136.”

The same rule was laid down in Yantis v. State, 65 Tex. Cr. R. 564, 144 S. W. 947.

It is sufficiently clear and plain that the grand jury had full knowledge of McCall’s statement when the indictment was found. They doubtless indicted McCall for the burglaries indicated by him. Now, if McCall had been included in the indictment as the party from whom appellant received the stolen goods, his confession could be used against him, connecting him with the matter as the thief, but not against appellant. The authorities seem to settle this proposition. Tucker v. State, 23 Tex. App. 518, 5 S. W. 180; Cooper v. State, 29 Tex. App. 8, 13 S. W. 1011, 25 Am. St. Rep. 712; Goldstein v. State, 75 Tex. Cr. R. 395, 171 S. W. 709; and Meek v. State, 71 Tex. Cr. R. 433, 160 S. W. 698. In these cases the indictment alleged the name of the parties from whom the property was received, and, having done so, the confession of the thief was admitted against him. A quotation from the Tucker Case is as follows:

“Upon the trial the court permitted the state, over defendant’s objection, to prove by one Thed-ford that he met Noon Tucker driving said yearling to deliver the same to Bachelor, to whom the same had been sold by defendant; that Thedford asked Noon Tucker ‘if that (meaning said yearling) was one he had maverieked’; that ■said Tucker at first made an evasive answer to said question, but afterwards said it was one •they had raised. This testimony was, we think, ■unquestionably competent as bearing upon the issue of the guilt of Noon Tucker of the theft of the yearling. It was essential for the state to prove that Noon Tucker had committed a theft of the yearling, in order to establish the charge against the defendant contained in the second count of the indictment.”

In the Mooney Case, 76 Tex. Cr. R. 543, 176 S. W. 53, the opinion states that, the indictment having made certain allegations', it was necessary for the proof to meet the allegations. The quotation is as follows.:

“The indictment alleged appellant received said cattle ‘from a person to the grand jurors, unknown.’ It was proper, if not necessary, that this should be proven.”

The state, as the writer understands this record, did not undertake to show that the property was received from a party to. the grand jurors unknown, or use any diligence to ascertain the name. It is only where the same is not known and cannot be ascertained by reasonable diligence that the allegation of an unknown owner or party is permitted. The testimony, therefore, from every viewpoint, of the sheriff as to. statements of McCall was inadmissible. It did show, however, that the allegation of reception of the goods from an unknown party was not authorized. Cases already cited; Branch’s Ann. P. C. p. 1367.

Objection was also urged to. the testimony of the witness Chenault. Devine testified that he and appellant had been partners in a secondhand business, and, without going into details with reference to those matters, he states that about two months before Christmas the^ dissolved partnership on not very friendly terms; that he took his goods and moved to Paris and went into business. Nearly all of the goods that were taken from these burglarized stores were found either in his possession or in places where he had disposed of them. A great quantity of these goods were found, in pursuance of his statement, at Ft. Worth and Dallas, and taken back to Wichita Falls, and were in court at the time of the trial of appellant. While in Paris, where he set up his store, he had conversations with Chenault. These conversations, acts, and declarations were admitted through Chenault. Appellant was in Wichita Falls. These towns were some distance, practically 100 miles, apart. We deem it unnecessary to state the conversations ; they are voluminous and the bills lengthy. These matters were not admissible. They' were declarations of Levine Long after the conspiracy, if there was one, between him and appellant. The acts and declarations of a coconspirator cannot be introduced, except as against himself, after the termination of the conspiracy or the purpose involved in their agreement. This is so well settled we deem it unnecessary even to cite authorities. They were furthermore conversations, acts, and declarations between third parties in the absence of defendant, and could not possibly be binding upon or used against him. The writer is of the opinion that those extraneous burglaries were inadmissible against appellant, except those in which he had been in possession of the goods.

There is another matter that might be mentioned in connection with the purchase theory before closing this opinion. There was testimony by the state that appellant purchased these goods. The jury should have been instructed that he was entitled to the benefit of his purchase theory, and should have been instructed that, if there was a reasonable doubt of this matter, he should hare had the benefit of that doubt in the charge. The jury should also have been instructed that, where the state puts in exculpatory statements, the statement will be taken as true,' and the state must prove same to be untrue. Unless the state proves same false, appellant would be entitled to an acquittal. The authorities will be found collated in Mr. Branch’s Ann. P. 0. pp. 1365-1367, inclusive.

The judgment will be reversed and the cause remanded.

PRENDERGAST, J.

I respectfully dissent.

My dissenting opinion in the companion case, No. 4547 (201 S. W. 1006), this day decided, is applicable herein.

MORROW, J.

(concurring).

Appellant

was convicted of receiving property which had been stolen from W. W. Viles. Viles was a merchant at Burkburnett, in Wichita county, and it was proved without dispute that his store was burglarized on the 25th day of October, 1916, and that certain property was stolen from it, and that some of the property was found in the possession of appellant. Appellant was a merchant at Wichita Palls. He had previously, been in partnership with one Mike Levine. Levine was also charged with receiving stolen property, and testified as a witness on behalf of the state, in substance stating that he and appellant had been partners in business, and that appellant had bought the stolen goods, and that in the dissolution of the partnership a part of the stolen goods came into the possession of the witness, Levine. The state having proved that Viles’ goods were stolen, that some of them were in appellant’s possession, and that he had bought them, was charged with the burden of proving that he received them with a guilty knowledge and intent. To make this proof it relied in part upon the evidence of an accomplice and in part upon circumstantial evidence. The latter consisted of the testimony of one Galbraith that he was a merchant in Kirkland, Childress county, and that on the 28th day of August, 1916, his store was burglarized and certain goods taken therefrom, a part of which was subsequently found in the possession of appellant. Similar testimony was given by Thomas, a witness, with refer- • ence to property stolen from his store at Alvord, in Wise county, on the 12th day of July, 1916; and with reference to a burglary of the store of one Collins at Ringgold, on the same date, and the finding of some of his stolen property in appellant’s possession. One Maloney gave evidence of a similar transaction concerning his store at Goree, Knox county, on August 18, 1916. He also testified that a part of his property was found in the possession of one McCall. On the locating of some of these stolen goods in appellant’s possession he told the sheriff that he had bought them from Mike Levine. The sheriff testified that he had a conversation with a man by the name of McCall at Sweetwater, about the 25th day of December, 1916, in which McCall confessed to some of the burglaries referred to, and further told the sheriff that certain Jews in Wichita were handling his stolen property, and gave the sheriff a description of the locality of the place of business of the Jews to whom he referred, from which description the sheriff identified, he says, the place of business of the appellant.

These circumstances suggest that McCall was engaged systematically in committing burglaries of merchants’ stores, and that the fruits of his crime systematically found their way into the possession of the appellant. Appellant’s explanation of his possession was the purchase of the goods. The fact that appellant had in his possession a part of the property stolen from the store of Viles, explained by the statement that he purchased it, might be regarded as of little weight in showing a criminal intent. One might innocently purchase stolen goods in a given instance. . If, however, it could be shown, either circumstantially or directly, that he purchased stolen goods a number of times, that they were all stolen in a similar manner by burglary, ttat the goods were similar in their character, merchandise, that the burglaries were committed by one individual, and that the character of business that the appellant was doing was a convenient vehicle for the disposition of stolen property, there would be presented a state of facts from which the inference of guilty intent might be inferred with much greater certainty than from a single transaction. These facts, we think, come within the principle often recognized by the text-writers and the courts wherein a series of acts of a nature similar to the act involved in the crime charged on trial may be proved for the purpose of enabling the jury to determine the intent and knowledge with which the main act was done. This principle is a well-established one. The difficulty presented in all instances is the determination of the question as to whether it is applicable to a given case. A discussion of it with reference to the possession of the stolen goods will be found in Mr. Wigmore’s Work on Evidence, vol. 1, p. 410 et seq., sec. 324. As said in Ruling Case Law, vol. S, p. 203:

“It is competent to show that a crime charged was a part of a common scheme or plan which included numerous offenses. The principle on which such evidence is received to show intent or state of mind is simply the principle which the human mind instinctively applies in ordinary affairs of life. If the question is whether a given. act was accidental or intentional, the fact that the actor has at numerous times performed similar acts under circumstances forbidding the idea of accident is very strong proof that the act under investigation was also intentional.”

The text cites and in the notes are listed many cases: Thompson v. United States, 144 Fed. 14, 75 C. C. A. 172, 7 Ann. Cas. 62; Thomas v. U. S., 156 Fed. 897, 84 C. C. A. 477, 17 L. R. A. (N. S.) 720; State v. Dobbins, 152 Iowa, 632, 132 N. W. 805, 42 L. R. A. (N. S.) 735; Com. v. Snell, 189 Mass. 2, 75 N. E. 75, 3 L. R. A. (N. S.) 1019; State v. Hyde, 234 Mo. 200, 136 S. W. 316, Ann. Cas. 1912D, 191; State v. Routzahn, 81 Neb. 133, 115 N. W. 759, 129 Am. St. Rep. 675; State v. Lapage, 57 N. H. 245, 24 Am. Rep. 69; People v. Molineux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. 193; State v. Welden, 39 S. C. 318, 17 S. E. 688, 24 L. R. A. 126; Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791; State v. Downer, 68 Wash. 672, 123 Pac. 1073, 43 L. R. A. (N. S.) 774. Notes: 44 Am. Rep. 300; 105 Am. St. Rep. 983; 62 L. R. A. 218; 43 L. R. A. (N. S.) 670, 756, 780; 11 Eng. Rul. Cas. 241; Dietz v. State, 149 Wis. 462, 136 N. W. 166, Ann. Cas. 1913C, 732.

The principle has often been applied in our own court, as will be noted in cases listed in Kaufmann v. State, 70 Tex. Cr. R. 441, 159 S. W. 58; Gray v. State, 77 Tex. Cr. R. 226, 178 S. W. 337. I am therefore of the opinion that in the instances developed in the evidence in this case, where the proof shows that the stores of merchants were burglarized by McCall, and the stolen goods were found and identified in the possession of appellant, that the evidence is competent. I think the confession of McCall to the burglaries committed by him (waiving the defect in the indictment referred to by the presiding judge) was admissible against the appellant to show the theft of the articles which came into his possession. It is elementary in this offense that the state must prove, first, that the goods were stolen; second, that the accused came into possession of them knowing they were stolen. In making proof of the first element the confession of the thief is admissible. I ■ do not think that the statement of McCall testified to by the sheriff, which tended to connect appellant with the receipt of the goods, was admissible. It should have been excluded as hearsay. McCall did not testify to it nor did he make confession or statement of it in appellant’s presence or hearing, nor was it made as shown by the record, under circumstances which admitted the statement of one co-conspirator or coprincipal during the commission of the act or in furtherance of a.'common design. I regard that part of the statement of McCall proved by the sheriff as damaging hearsay testimony, requiring a reversal of the case. After the. dissolution of the partnership between Mike Levine and appellant, Mike Leyine was found in possession of certain articles stolen from the store of Viles and from the other stores mentioned by them. At the time he was so found in possession of them, some of them were in Dallas, and some of them were in Paris, Tex., and other places remote from Wichita. The state was permitted to prove certain statements made by Levine in the absence of appellant, and which tended to connect appellant with the crime. I think these statements made in appellant’s absence by Levine, at the tipie they were made, as shown by the evidence, were hearsay and should have been excluded. It is clear that at the time they were made appellant and Levine were not acting together; that their criminal design, if one existed, had been completed and their relationship had ceased. The admission of this evidence was, I think, reversible error.

For these reasons I concur in the reversal of the case. 
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