
    ALLISON v. STATE.
    (No. 7000.)
    (Court of Criminal Appeals of Texas.
    Dec. 20, 1922.
    Rehearing Granted June 29, 1923.
    State Rehearing Denied June 25, 1924.)
    1. Receiving stolen goods <3=?8(3) — Evidence held to support conviction.
    In prosecution for receiving and concealing stolen property, evidence held sufficient to sustain conviction.
    2. Receiving stolen goods <3=>8(2) — Officers .testimony as to finding stolen property in defendant’s absence held competent.
    Testimony of officer as to finding alleged stolen property, its location and condition when found, and that defendant’s brother was present when he found it, was competent; fact that defendant was not present not affecting its admissibility.
    3. Criminal law <3=1056(1) — Exception to charge as on weight of testimony cannot be first urged on appeal.
    Exception to charge as being on weight of testimony cannot be urged for first time on appeal.
    4. Receiving stolen goods <3=8(2) — Evidence as to fact of burglary and finding of stolen goods held not incompetent as' concerning acts in absence of accused.
    Evidence of store owner and clerk, relating to burglary and loss of property, its recovery and identification, was not objectionable, as evidence of acts transpiring in absence of accused.
    5. Receiving stolen goods <3=8(2) — Certain evidence bearing on relations of thief and brother of defendant held not incompetent.
    Where defendant had shown that, subsequent to trial of N. for burglary, defendant’s brother had been indicted for receiving and concealing stolen property, but had not been arrested, objection to question, to brother’s wife as. state witness, whether her husband was witness against N. to which she answered affirmatively, was properly overruled.
    6. Criminal law <3=1169(8) — Certain evidence held, if erroneous, to be favorable to defendant'as showing guilt of another, than defendant.
    dounty clerk’s testimony as witness for defense that defendant’s brother was witness for state, and testified on trial of N. for burglary, and that, when defendant’s case was reached, his brother failed to appear, and attachment issued, and was returned not found, . held not harmful to defendant, who had shown that his brother was indicted for receiving stolen goods; such testimony as to flight tending to show guilt of brother rather than defendant.
    7. Criminal law <3=3888 — Permitting county attorney to change verdict by substitution of word held without error.
    In view of Code Or. Proc. art. 773, where verdict originally returned found defendant guilty of possessing and concealing stolen property, permitting county attorney to change it so that word “receiving” was inserted for word “possessing,” held without error, where, after such change,' each juror was1 asked if he-consented to change and if verdict as read was-his.
    On Motion for Rehearing.
    8.Receiving stolen goods <s=9(2) — Charge, authorizing jury to consider, on question of knowledge, evidence of facts not known to defendant, held reversible error.
    Charge which authorized jury to consider against defendant evidence of facts which may not have been known to him, in determining whether he knew property had been stolen, and received it with such knowledge, held reversible error.
    Appeal 'from District Court, 'Milam County; John Watson, Judge.
    Raymond Allison was convicted of receiving and concealing stolen property, and he appeals.
    Reversed and remanded.
    R. Lyles, of Cameron, and Robt. M. Lyles, of Groesbeek, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Milam county of receiving and concealing stolen property of the value of more than $50, and his punishment fixed at two years in the penitentiary.

The indictment contained three counts; one charging theft of said property, another the receiving of said property from Bryant Walker and Mike Nichols and concealing same, and the other charging the receiving of said property from some person to the grand jurors unknown. The trial court submitted only the second count. Appellant’s contentions appear in ten bills of exception which we consider in the order same appear in appellant’s brief.

It is urged that the evidence does not support the verdict. Without detailing the testimony of individual witnesses it appears from the testimony of the state that on Tuesday night December 14, 1920, the store of the Thorndale Mercantile Company was burglarized, and property exceeding $1,000 in value taken therefrom. The back door of said store opened upon an alley, and said door was broken. A witness who knew Bryant Walker and Mike Nichols swore that he saw them in Thorndale Tuesday afternoon before the burglary; that they were in a green Essex touring car, and were accompanied by another man unknown to witness. Witness did not know appellant. Another witness testified that on the same afternoon he saw Mike Nichols, Bryant Walker, and another man whom he did not know drive into the alley which ran behind the Thorn-dale Mercantile Company’s store. Another witness testified that between 1 and 2 o’clock that night he saw a green Essex car in Thorndale going out toward Cameron on the Cameron road. The next day after said burglary appellant, Mike-Nichols, and Bryant Walker drove a green Essex touring car to-Taylor, in Williamson county, and from there by Thrall and on to Cameron. They met a Miss Hawes at Taylor, and carried her to Cameron, where the party spent the night of Wednesday the 15th. The next morning said party drove out to the home of appellant’s brother with whom he made a crop during the year 1920, and in the room which had been occupied by appellant Bliss Hawes testified there were five suit cases up over some matting resting on the rafters. The suit eases were brought down, opened, and large quantities of men’s and women’s clothes appeared. Bryant Walker gave Miss Hawes a coat, and himself put on a shirt coming out of said suit cases, and Miss Hawes said she saw appellant trying on a pair of new shoes, and saw Mike Nichols trying on a hat. Erom this place the party went back to Cameron, and from Cameron to Rogers in said green Essex touring car. After spending the night in Rogers, Bliss Hawes went back to her home in San Marcos. The next appearance of appellant in this record is when he was arrested in Oklahoma in the early part of the week following the burglary; He was in company with Mike Nichols, and they had the green Essex touring car with them. On Monday of said week the officers found in a sand bank, about 100 or 150 yards from the Rouse where Miss Hawes testified she saw the five suit cases above mentioned, five suit cases and a bundle containing overcoats. This property was afterwards identified by the owners of the burglarized store as being their property, and that which was taken the night of the ‘burglary. The coat given to Miss Hawes was also identified as part of the stolen property. When appellant was aimested in • Oklahoma he had on a pair of new Edwin 'Clapp No. 7 brown shoes. Said shoes were produced in court upon his trial, and there examined by the clerks and proprietors of the burglarized store. These people testified that they handled the Edwin Clapp shoe, and one of them said that on the afternoon before the burglary he showed a pair of brown Edwin Clapp shoes No. 7, having the same width and last as the pair taken off the feet of appellant when arrested, and that the shoes were taken on the night of the burglary. Said witness further stated that in their shoes the name “Thomdale Mercantile Company” was written- or stenciled, and that the shoes contained the stock number. At a place in the pair of shoes taken from the feet of appellant, corresponding with the place in which the words “Thorndale Blercantile Company” were placed by the owners of said store, was found where with, a knife or other sharp instrument a name had been erased. The stock number of the pair of shoes -found upon appellant had also been erased with ink or indelible pencil. We have stated this much of the testimony in order that -it may be understood why we find ourselves unable to agree with appellant’s contention that the evidence does not support the jury’s verdict finding the appellant guilty in this case. He did not take the stand and testify. Elis defense appears to have been an alibi, and two witnesses testified that they saw him in Cameron and carried him with them from Cameron to Rogers on the night of the 14th of December, 1920. On cross-examination these witnesses admitted that their attention to this date was in no wise fixed or attracted until sifter appellant had been arrested, and after he made bond and came to each of them and reminded them of the date. The wife of appellant’s brother, at whose house he had been living, and near whose house the stolen property was found buried by the officers, testified that her husband was at home -all during the night of December 14th. In addition to the above testimony a grip belonging to appellant and containing letters addressed to him and some of his clothes, was found by the officers at the house of his brother on the occasion of their visit and the finding of the buried and stolen property.

By a bill of exceptions appellant complains that Officer Blaylock was allowed to give testimony of the finding of the alleged stolen property, and to relate things told him by Earl Allison in the absence of the accused. An examination of bills of exception Nos. 8 and 9, setting forth appellant’s contention in this regard, fails to disclose any statements made to th^ officer by Earl Allison. In our opinion it was permissible for the sheriff to tell of the finding of the stolen property, its location and condition when found, and that Earl Allison was present when he found same. The fact that appellant was not present in no way affects the admissibility of such evidence.

In the main charge the court gave the following instruction:

“In this case the witnesses John Worley, L. L. Blaylock, Gus Newton, Bill Bleredith, Rufus Milligan, and Gal Gregory have testified to certain facts indicating the presence of Mike Nichols and B. W. Walker in the town of Thorn-dale on the afternoon preceding the night of the alleged theft and at times, places, and under circumstances when the defendant was not shown to have been present, and to the -flight of said B. W. Walker and Blike Nichols.
“Now this testimony was permitted for the purpose of enabling you to determine whether or not the property described in the indictment was acquired by the said B. W. Walker and Mike Nichols under such circumstances as that the acquisition thereof comes within the meaning of the term theft, and as to whether or not the said defendant, Raymond Allison, knowing it to have been so acquired, received said property from the said B. W. Walker and Mike Nichols, and if you consider such testimony at all, you will consider it for no other purpose than that herein mentioned.”

The giving of this charge was an error against the state. There was nothing in the testimony of any of the witnesses named which should have been limited in the charge. The testimony of the owners of stolen property to the fact of the loss and recovery and identification thereof in most cases will be a narration of facts and acts transpiring out of the presence of the taker of the goods or the breaker of the house, but such evidence needs no limitation in the charge. The testimony of witnesses to the finding of stolen property and a description of its condition and location when found, and of 'its return to the owner, though this be a narration of things transpiring in the absence of the alleged thief, needs no limitation in the charge. The effect of such evidence is to prove issuable facts. This court has always heldRhat any testimony legitimately showing the theft of the property by those from whom the illegal receiving is alleged in a case such as the one before us would be admissible against the receiver upon his trial, and, when there,is such evidence as the confession of the alleged thief or record testimony of his conviction, we have held it proper to limit the purpose of such evidence as affecting only the question of the alleged theft. The injury of a failure to so instruct the jury would be questionable, unless something appear in such evidence which might have reasonably been given an effect beyond mere proof of the guilt of the original taker. In Tucker v. State, 23 Tex. App. 518, 5 S. W. 180, where a self-incriminating statement made by the alleged taker of thg stolen animal was introduced against the receiver, and the effect of the introduction of such evidence was not limited in the charge, Judge Will-son said;

“But the defendant complains that the charge of the court does not sufficiently limit and restrict the purpose for which this testimony might be considered by the jury. He contends that the jury should have been further told that they could only consider it in determining whether Noon Tucker was guilty of the theft of the yearling and could not consider it as any proof that defendant fraudulently received said yearling, knowing that Noon Tucker had stolen it. It would have been proper for the court to have so instructed the jury, perhaps, but the omission to do so was not excepted to by defendant, or in any manner called to the attention of the. court at the time of the trial, as for as is disclosed by the record, and we do not think the error, if error it was, could have operated to the prejudice of defendant, as said testimony did not even in a remote degree tend to show that defendant had fraudulently received the yearling, knowing the same to be stolen property. Said testimony only bore up-' on the issue of Noon Tucker’s guilt of the theft, and for this purpose it was clearly admissible.”

See Cooper v. State, 29 Tex. App. 18, 13 S. W. 1011, 25 Am. St. Rep. 712.

It being the usual rule that, the acts and declarations of third parties cannot be invoked as binding one not present or connected in some way with such acts or declarations, the reason for a limitation of such acts and declarations when they relate only to the guilt of the taker is apparent. But, when the testimony relates to those acts which are but the development of the transaction making out the offense charged, such as testimony of the loss of the property, or the burglary of the house, and the finding of the property, and its return to the owner and his identification of it, and, as applicable to the instant case, the seeing of the alleged takers in the neighborhood of the burglarized house about the time of the burglary, they being accompanied by another person who might easily be the accused in this case, it needs no limitation. We have concluded that the charge above quoted and under discussion was erroneous, but, as said by Judge Willson in Tucker v. State, supra, “We do not think the error * * * could have operated' to the prejudice" of the defendant.” We are forbidden by article 743 of our Code of Criminal Procedure to reverse cases for errors in the charge, unless the error was calculated to injure the rights of the accused or prevent his having a fair and impartial trial. If it was error to group the witnesses in said charge, and attribute to them testimony which they did not give, we observá there was no exception presented to the court calling his attention specifically to such error, and appellant’s special charge No. 2 made the same grouping of the witnesses and attributed to them the same testimony as contained in that portion of. the main charge above quoted. There was no exception directed to any part of said charge as being on the weight of the testimony. Com plaint is directed at this for the first time upon appeal. The,failure to take such exception deprives the accused of the right to complain here. Regittano v. State (Tex. Cr. App.) 257 S. W. 906, opinion November 29, 1922; Pollard v. State, 58 Tex. Cr. R. 299, 125 S. W. 390; Thompson v. State, 59 Tex. Cr. R. 498, 124 S. W. 659; Williams v. State, 22 Tex. App. 497, 4 S. W. 64.

Appellant’s -bills of exceptions Nos. 2, 3, 7, 8, and 9 set forth his objections to the testimony of the owner of the store and his clerk testifying to facts relating to their finding the store burglarized and the loss of the property, and its recovery and identification ; also to the finding of said property by the sheriff, and its condition and its return to the owner. We have álready indicated our view that appellant’s objection to this as being evidence of acts transpiring in the absence of the accused would not be sound, and the bills present no error.

-By his bill of exceptions No. 10 appellant complains of a question propounded to the wife of Earl Allison, appellant’s brother, ■while testifying for the state. The question asked her was if she knew whether her husband was a witness in the case against Mike Nichols, to which the witness answered that he was here as a witness. The objection to this was that it was irrelevant and immaterial and prejudicial to this defendant. The trial court qualifies the bill of exceptions by stating that appellant had shown that subsequent to the trial of Mike Nichols appellant’s brother, Earl Allison, had been indicted for receiving and concealing stolen property, and that he had not been arrested. We fail to see the injury to the appellant in the matter complained of.

Appellant’s bill of exceptions No. 11 presents the same matter in a little different way. The district clerk was testifying as a witness for the defense, and stated that Earl Allison was present as a witness for the state, and testified upon the trial of Mike Nichols, and that appellant’s ease was set for trial immediately following that of Mike Nichols, and that, when appellant’s case was reached, Earl Allison, though summoned as a witness, failed-to appear, and that attachment was issued for him and returned -showing that he could not be found. This bill is also qualified by the trial court stating that appellant had already had said witness to testify that after the trial of Mike Nichols Earl Allison was indicted himself, and to say that his arrest had not been effected. As we view this evidence it was favorable to appellant. If we understand his purpose in proving the indictment of Earl Allison for receiving and concealing the same property, for the receiving and concealing of which appellant was on trial, the proof of Earl Allison’s flight would be a circumstance tending to show his guilt, and to that extent would lend color to the proposition that Earl Allison was the receiver and the one who had concealed said property and not this appellant.

Appellant also complains that the verdict of the jury as originally returned into court found him, guilty of possessing and concealing stolen property, and that, without resubmitting the matter to the jury or sending them back for a consideration further, the trial court permitted the. county attorney to change said verdict so that the word “receiving” was inserted therein instead of the word “possessing.” The bill of exceptions is qualified by the statement that after the verdict was so changed it was again read by the district clerk, and the court asked each juror if he consented to the change, and if the verdict as read was his, and each answered affirmatively. Article 773 of our C. C. P. provides for the correcting of verdicts. Many authorities are cited by Mr. Vernon in his Annotated C. C. P., pp. 582, 583, holding that verdicts may be corrected in matters as vital as the correction made in jthe instant cáse.

Finding no reversible error in the record, the judgment of the trial court will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

The correctness of our opinion in holding the charge set out therein erroneous but harmless is assailed. We again copy the charge, italicizing that portion criticized.

“In this case the witnesses John Worley, L. L. Blaylock, Gus Newton, Bill Meredith, Rufus Milligan, and Cal Gregory have testified to certain facts indicating the presence of Mike Nichols and B. W. Walker in the town of Thorndale on the afternoon preceding the night of the alleged theft and at times, places, and under circumstances when the defendant was not shown to have been present, and to the flight of said B. W. Walker and Mike Nichols.
“Now this testimony was permitted for the purpose of enabling you to' determine whether or not the property described in the indictment was acquired by the said.B. W. Walker and Mike Nichols under such circumstances as that' the acquisition thereof comes within the meaning of the term theft, and as to whether or not the sadd defendant, Raymond Allison, knowing it to have been so acquired, received said property from the said B. W. Walker and Mike Nichols, and, if you consider such testimony at all, you will consider it for no other purpose than that herein mentioned."-

Whether proper or not to limit the testimony of the witnesses named it would affect appellant’s rights if the limitation given was injurious to him. The charge condensed and paraphrased means:

“Certain witnesses (naming them) have testified to facts which are not shown to have been known to Allison; although he may not have been aware of these circumstances you may consider them in determining whether he knew the property had been, stolen, and received it with such knowledge; you may also consider it in determining whether Walker and Nichols stole it.”

Counsel for appellant directly called the court’s attention to the error in the portion of the charge italicized by the following objection filed at the proper time.

“Defendant objects and excepts to that portion and paragraph of the court’s main charge wherein the court attempts to limit the testimony of the witnesses Blaylock, Worley, Newton, Meredith, Milligan, and Gregory, for the reason that • the same expressly authorized the jury to consider evidence transpiring in the absence of the. defendant, and of which no knowledge has been brought home to him, and by which he was in no wise bound in passing upon whether or not defendant knew the, property alleged to have been received and concealed by him had been acquired under such circumstances as that the acquisition thereof comes within the meaning of the term theft. Defendant tenders his special charge No. 2 in conformity herewith.”

The special charge referred to in the objection was a copy of the charge given by the court, but omitting the italicized portion. Thus in two ways was the court’s attention directed to the particular part of the charge considered by appellant as objectionable. The special charge requested, following the specific objection, amounted to nothing more than saying to the court we make no protest against the first portion of your charge, but believe the latter part should be omitted. Upon reconsideration we have reaahed the conclusion that we were in error in holding the charge harmless. It authorized the jury to consider against appellant evidence which c'ould not be appropriated to that purpose in the absence of his knowledge. To what extent the jury ’may have availed themselves of the privilege thus extended is impossible for us to know.

The error calls for granting the motion for rehearing, which is ordered; the judgment of affirmance is set aside, and the judgment of the trial court is reversed, and the cause remanded.

On State’s Motion for Rehearing.

MORROW, P. J.

The district attorney, in an argument showing thought and research, has filed a motion for rehearing. With it before us, we have considered the record and the authorities cited, and are constrained to regard the opinion heretofore written as making the proper disposition of the case.

The motion is overruled. 
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