
    GERBER v. STATE.
    (No. 6048.)
    (Court of Criminal Appeals of Texas.
    April 20, 1921.
    Rehearing Denied June 24, 1921.)
    1. Criminal law &wkey;>508(6) — Testimony of alleged accomplice admissible after dismissal of charge.
    Testimony of one indicted as an accomplice is admissible after the prosecution against him has been dismissed, under Code Cr. Proc. 1911, arts. 791, 792.
    2. Criminal law <&wkey;80 — Evidence showing guilt of principals admissible in prosecution of accomplice.
    In prosecution of an alleged accomplice to theft, court properly admitted testimony showing negotiations between alleged principals in the absence of the accused, where such testimony bore upon the guilt of the principals and was properly limited to that purpose by the court’s charge.
    3. Criminal law <s==o369( 15) — Evidence showing subsequent similar conspiracy held admissible to identify defendant.
    In a prosecution for accomplice to theft, court did not err in admitting testimony for the purpose of identifying defendant, showing that after the alleged conspiracy and theft accused was arrested in another state in company with the same conspirators charged with the offense in question, and was acting with them in endeavoring to perpetrate a similar fraud, using the same means, including a pocketbook and papers, used in deceiving the prosecuting witness.
    4. False pretenses <&wkey;>23 — Person aiding theft through conspiracy adopts acts of principals preceding entry into scheme.
    One having knowledge that principals intended to obtain money by conspiracy and false representation, who aided and encouraged it, adopted the acts of the principals which preceded his entry into the scheme.
    On Motion for Rehearing. ■
    5. Criminal law t&wkey;423(2) — Declarations of coconspirators admissible.
    Acts and declarations of coconspirators made in pursuance of the common design and prior to the commission of the offense may always be admitted in evidence, regardless of whether they are made in the presence of the accused on trial or not.
    6. False- pretenses <&wkey;44 — Evidence of state’s witness that he-, and not accused, was officer of exchange held admissible.
    In a prosecution for accomplice theft by false pretenses, where accused was charged with haying held himself out to the prosecuting witness as secretary of the “Fort Worth Exchange,” and thereby, with other conspirators, had obtained his money, trial court properly permitted a witness to testify that he was secretary of the “Fort Worth Grain and Ootton Exchange” at the time in question, and that the accused was not an employee of such exchange, it being the claim of the state that there was no such institution as the “Fort Worth Exchange,” but that it was the purpose of accused to mislead the injured party into believing the former to be a bona fide officer of an exchange in the city of Fort Worth.
    7. False pretenses <&wkey;9 — -Subsequent acquiescence after arousing of suspicions held not to relieve alleged conspirator.
    In a prosecution for accomplice to theft by false pretenses, property having been taken from prosecuting witness through a conspiracy, it could not be said that false representations made by the coconspirators had no influence and were of no effect in inducing complaining witness to part with his money, because of the fact that at some stage in the transaction, complaining witness became suspicious and demanded of one of the coconspira-tors the return of the money which he had delivered to such coconspirator, and that, by apparent frankness and acquiescence at said time, the suspicions of complaining witness were allayed, and the confederate permitted to keep and appropriate the money.
    Appeal from District Court, Tarrant County: Geo. E. Hosey, Judge.
    John Gerber was convicted as accomplice to theft, and appeals.
    Affirmed.
    McLean, Scott & McLean, of Fort Worth, for appellant.
    Jesse M. Brown, Cr. Dist. Atty., of Fort Worth, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, P. J.

Conviction is for accomplice to theft; punishment fixed at confinement in the penitentiary for 10 years.

The injured party was Norfleet. He re-sided in the northern part of the state, and there owned a tract of land. In a hotel in the city of Dallas he was introduced by one Miller to a man named Spencer. Miller was also a stranger. Spencer told Norfleet that he was representing parties who wanted to buy land in Texas, and, after negotiations, entered into an engagement with a view to purchasing Norfleet’s land. While they were conversing, a pocketbook was found by Nor-fleet, and in it were various papers and a •sum of $240 in money. By data contained in the book, it was identified as belonging to a man named Stetson, who was found, on inquiry, to be an inmate of the hotel. He, upon receiving the pocketbook, expressed great delight, and offered a large reward, and finally induced Norfleet to engage in certain supposed stock speculations, which culminated first in the loss of $20,000 and later of $25.-000 by Norfleet. Stetson claimed to be operating for persons in New York, and to have inside information upon which large sums of money could be made by them, and claimed that he had identification papers by which he could conduct operations in the cities of DaL las and Fort Worth, Tex. In the Course of the transaction, there were exhibited to Nor-fleet by Stetson and Spencer large sums of money. A man by the name of Ward, acted with Stetson and Spencer, and impersonated the secretary of the Dallas Stock Exchange and the appellant fraudulently impersonated the secretary of the Fort Worth Stock Exchange. The representations concerning the investments were false, and Norfleet’s money was stolen, possession having been obtained by ialse pretenses.

The appellant is charged as an accomplice of Stetson and Spencer in the theft of the sum of $25,000. Miller, it appears, was also indicted for it, and the appellant complains of the court’s refusal to order a severance to the end that Miller might be first tried and his testimony he available to the appellant. The bill, as qualified, shows that the prosecution against Miller was dismissed. His testimony was thereby available. Code of Crim. Procedure, arts. 791-792; Jones v. State, 85 Tex. Cr. R. 538, 214 S. W. 322.

Several bills complained of the refusal of the court to exclude the testimony showing the negotiations which took place between Norfleet and Stetson, Spencer, Ward, and Miller in the absence of the appellant. It was essential that the state prove the guilt of the principal offenders named in the indictment. The transactions and declarations of Stetson and Spencer showing their guilt were properly received. Branch’s Ann. Tex. Penal Code, § 725; Parker v. State, 24 Tex. App. 61, 5 S. W. 653; Arnold v. State, 9 Tex. App. 438; Sapp v. State, 223 S. W. 468; Cox v. State, 8 Tex. App. 256, 34 Am. Rep. 746. The part of these transactions and declarations which related to the theft of the $20,000 item was relevant and admissible as bearing upon the guilt of the principals, and was properly limited to that purpose by the court’s charge.

Appellant, when arrested in California, was in company with the same conspirators who were charged with this offense, and was acting with them in endeavoring to perpetrate a similar fraud, using the same means, including the pocketbook and papers which were used in deceiving Norfleet. The court did right in admitting testimony to these facts to identify the appellant with the transaction embraced in the indictment, and, having, at the request of appellant, in a special charge confined to that purpose, complaint of the action of the court in admitting the testimony is, in our judgment, without merit.

The sufficiency of the indictment is assailed. The fourth count alone was submitted to the jury. We have before us no brief for the appellant, and, in our examination of the indictment in the light of the motion to quash, we have been unable to discern that it fails in any particular to fulfill the requirements of the law. To set it out would serve.no useful purpose; suffice it to say that we discover in it no departure from the approved forms.

Objections urgéd against the charge of the court are mainly addressed to the proposition that the evidence fails to sustain the conviction of the principal offenders, - for the reason that the transaction in which Nor-fleet lost his money was a gambling transaction. The evidence, on the contrary, we think, shows that the money was not lost in a gambling transaction or device, but that possession of it was fraudulently obtained by false representation of fact, and the possession thus acquired was made use of to appropriate the money to the use' of Stetson and Spencer; that the devices and representations used to deceive Norfleet were conceived and agreed to by Stetson, Spencer, and others, including the appellant. The appellant, having knowledge of the unlawful end to be attained, having aided and encouraged it, adopted that part, if any, which had preceded his entry into the scheme. Baker v. State, 7 Tex. App. 613; Harris v. State, 31 Tex. Cr. R. 414, 20 S. W. 916; Branch’s Ann. Tex. Penal Code, 693.

The evidence is sufficient, and the procedure regular.

The judgment is affirmed.

On Motion for Rehearing.

BATTIMORE, J.

In his motion for rehearing, appellant complains that we erred in upholding the action of the trial court in admitting in evidence the statements of various parties who were claimed by the state to have been coconspirators with appellant in the commission of the offense. The charge under which appellant was convicted was that of being an accomplice, and the acts and statements of his coconspirators complained of were those which took place anterior to the commission of the offense. The rule seems well settled that acts and declarations of coconspirátors made in pursuance of the common design, and prior to the commission of the offense, may always be admitted in evidence, regardless of whether same are made in the presence of the accused on trial or not. This observation is made in addition to the statement in our original opinion that the evidence was admissible as tending to show the guilt of the principal offenders.

It is again urged that we were in error in holding correct the action of the trial court in permitting witness Wooten to testify that he was secretary of the Port Worth Grain and Cotton Exchange in 1919, and that the defendant, Gerber, was not an employee of such exchange. It was in testimony and a part of the state’s case that appellant represented himself to the injured party as secretary of the Port Worth Exchange. It was the claim of the state that there was no such institution as the Port Worth Exchange, but that it was the purpose of appellant to mislead the injured party into believing the former to be a bona fide officer of an exchange in the city of Port Worth. We think the evidence of witness Wooten 'admissible for the purpose of showing or tending to show the falsity of the appellant’s statements and representations to Norfleet, the injured party, relating to the character and employment of appellant.

There is also complaint of the fact that we held the evidence sufficient to support the verdict. We do not think it necessary to further discuss said matter, as it was gone into in the original opinion. We are unable to say that the false representations made by the confederates and coconspiratora of appellant had no influence, and were of no effect in inducing Norfleet to part with his money, because of the fact that at some stage in the transaction Norfleet became suspicious, and demanded of one of said coeon-spirators the return of the $25,000 belonging to Norfleet, and which he had delivered to said confederate, and that, by apparent frankness and acquiescence at said time, the suspicions of said Norfleet were allayed, and said confederate was permitted to keep and appropriate said money.

We have reviewed the case in the light of the motion for rehearing, but find ourselves unable to conclude that our former disposition was wrong, and said motion is therefore overruled. 
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