
    SPARKS v. STATE.
    (No. 11149.)
    Court of Criminal Appeals of Texas.
    Dec. 21, 1927.
    1. Receiving stolen goods «@=>1 — If accused and codefendant jointly stole property, neither could be guilty of receiving it from the other.
    If accused and his codefendant jointly stole property, neither could be guilty of receiving it from the other.
    2. Receiving stolen goods <©=>l — If accused stole property, he could not be guilty of receiving it.
    If accused stole property in question, he could not be guilty of receiving stolen goods, since he could not receive property from himself.
    3. Criminal law <©=>789(3) — In prosecution for theft and receiving stolen goods, jury should be instructed that reasonable doubt of grade of offense under evidence should be resolved in favor of accused.
    In prosecution for theft and for receiving stolen goods, jury should be instructed that, if evidence leaves reasonable doubt of grade of offense (that is, whether felony or misdemean- or), such doubt, if any, should be resolved in favor of accused, and, if convicted in such event, it should be of misdemeanor.
    4. Receiving stolen goods <®=»2 — If goods were taken while accused had management or joint ownership of store, he could not be guilty of theft or receiving stolen goods.
    If goods were taken from store while accused actually had care, management, or control of store, or if he were joint owner of same, he could not be guilty either of theft or of receiving stolen goods.
    5. Criminal law <©=>9251/2(1) — Where jury receives evidence after retirement calculated to convict, new trial should be awarded (Vernon’s Ann. Code Cr. Proc. 1925, art. 753, subd. 7).
    Where evidence is received by jury after its retirement which is calculated to bring about conviction, Court of Criminal Appeals will not speculate on its injury to accused, but reception of such evidence requires court, under Vernon’s Ann. Code Cr. Proc. 1925, art. 753, subd. 7, to award new trial.
    6. Criminal law <®=»925!/2(3) — Where jurors referred to accused as tough character when some favored acquittal, and jury found him guilty of receiving stolen goods, error required new trial (Vernon’s Ann. Code Cr. Proc. 1925, art. 753, subd. 7).
    In prosecution for receiving stolen goods, where, after jury had retired and while they were deliberating and stood nine for conviction and three for acquittal, some jurors referred to accused being a tough character and stated that he had ruined several young men, and jury thereafter agreed upon his guilt, some testifying that they did so reluctantly, there was error demanding reversal under Vernon’s Ann. Code Cr. Proc. 1925, art. 753, subd. 7, relating to jury’s receiving evidence after retiring as ground for new trial.
    Appeal from District Court, Hall County; R. L. Templeton, Judge.
    J. B. Sparks was convicted of receiving and concealing stolen property of the value of more than $50, and he appeals.
    Reversed and remanded.
    R. H. Beville, of Clarendon, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   MARTIN, J.

Offense, receiving and concealing stolen property of the value of more then $50; penalty, two years in the penitentiary.

Appellant, J. B. Sparks, and Albert Wasson were jointly indicted in two counts; the first being for the theft of certain personal property consisting of various articles of merchandise alleged to belong to one Pete Gabbert, and the second count charging the reception of this same property from some person to the grand jurors unknown, knowing the same to have been stolen. He was convicted under the second count.

December 27, 1926, and prior thereto, witness Pete Gabbert was in the drug business in the town of Lelia Lake, and appellant, J. B. Sparks, referred to by witnesses as Dr. Sparks, had an office in Gabbert’s drug store until a few days before the drug store burned, which appears to have been on December 27,1926. It seems that Dr. Sparks owned part of the stock in said drug store, and until the time he moved out had a key to same and pratically had charge of the business. In January, 1927, appellant’s premises were searched, and various articles of merchandise alleged to have come from the stock owned by witness Gabbert were found in his possession.

The sufficiency of the evidence is vigorously assailed. Witness Gabbert appeared either unable or unwilling to identify the goods found in possession of appellant. The difficulty the state had in making out its case is illustrated by the following quotation from Gabbert’s testimony:

“I don’t know whether any of this stuff was taken out of my stock of merchandise. I don’t know that this is the same stuff that came out of my stock of goods. All that I can identify would be what my name is on, and that could have been shipped to the store by authority of Dr. Sparks or his daughter, who had authority to buy and sell in my store. Sometimes part of the goods would be his; some of it his, some of it mine. In fact he owned the stock of drugs, and, if he used the stuff I had, he always paid me. I suppose Dr. Sparks owned a lot of stuff here that'I could not identify. At the time he moved a truckload of stuff away from my store a few days before Ghristmas, he moved some stuff similar to this. He had a little of nearly everything. Dr. Sparks really had charge of the store.”

The clearest incriminating fact against appellant we have found in the record arises from the testimony of Troy Rackley. This witness left in the store the aftembon before it was burned that night a hand bag which had in it three pair of trousers, a pair of slippers, part of a toilet set, and some shirts. The hand bag and part of these articles were subsequently found in possession of appellant and positively identified by the witness; however, they were not named in the indictment. In view of the disposition we make of this case, we will not pass on the sufficiency of the evidence.

There are forty-seven bills of exception found in the record. Some of these manifest error. Other errors appear in the record which were not made the subject of exception in the trial court. We deem it best to discuss generally and briefly certain law questions arising from this record, without a tedious discussion of all of appellant’s bills.

If appellant and his codefendant jointly stole this property, neither could be guilty .of receiving it from the other. Harper v. State, 88 Tex. Cr. R. 354, 227 S. W. 190. See, also, Bloch v. State, 81 Tex. Cr.

R. 1, 193 S. W. 307; Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58. Nor could the appellant be guilty of both offenses. If he stole the property, he could not receive it from himself, as appears to be indicated by the court’s charge.

The jury should be instructed that, if the evidence leaves a reasonable doubt of the grade of the offense (that is, whether a felony or a misdemeanor) such doubt, if any, should be resolved in favor of the appellant, and, if convicted in such event, it should be of a misdemeanor. Bussell v. State, 98 Tex. Cr. R. 170, 265 S. W. 164; Richardson v. State, 91 Tex. Cr. R. 325, 239 S. W. 218, 20 A. L. R. 1249.

We will observe further that, if these goods were taken while appellant actually had care, management, and control of the store, or if he were the joint owner of same, he could not be guilty under either count of the indictment. He might under such circumstances be guilty of another and different offense. Again, if the elements of burglary can be proved, as would seem to be indicated by the testimony of Rackley and Bynum, the state could in such a prosecution avoid many of the legal and fact obstacles present in the record of this ease.

Bill of exception No. 45 shows, in substance, that; after the jury had retired and while they were deliberating upon the case, and while the jury stood nine for conviction and three for acquittal, some of the jurors referred to the appellant being a tough character, and that he had ruined several young men around Newlin, also that the appellant’s failure to testify was mentioned; one of the jurors stating that he would have been better satisfied if the appellant had testified. The purported fact of appellant’s ruining several young men around Newlin and being a tough character appears to have been mentioned several times in the jury room. The jury thereafter agreed upon the guilt of appellant; some of them testifying thgy did so reluctantly. Three of the jurors testified to substantially these facts on motion for a new trial; nine not testifying.

Where evidence is received by the jury after its retirement which is calculated to bring about a conviction, this court will not speculate on its injury to appellant. Reception of such evidence requires this court under the statute and its uniform holdings to award a new trial. Brown v. State, 101 Tex. Cr. R. 639, 276 S. W. 929; Howell v. State, 94 Tex. Cr. R. 563, 252 S. W. 539; article 753, sub. 7, Vernon’s C. C. P. 1925, and authorities there cited.

That appellant was a tough character and had been guilty of ruining young men-was certainly under the issues of the case not admissible against him from the witness stand, where he might have had the privilege of cross-examining the witnesses and offer-’ ing rebuttal testimony. It would bave a more barmful effect, we think, where given to tbe jury secretly in bis absence by ex parte, unsworn statements, without any opportunity of rebuttal or cross-examination. This bill shows such error as demands a reversal.

We’ forego discussion of other errors alleged, as they are of such character as will probably not occur on another trial.

The judgment is reversed, and the cause remanded.

PER CURIAM. 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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