
    KYLE v. STATE.
    (No. 5489.)
    (Court of Criminal Appeals of Texas.
    Jan. 14, 1920.)
    1. Receiving stolen goods &wkey;>3 — Defendant GUILTY IN CASE OF RECEPTION OR CONCEALMENT WITH KNOWLEDGE.'
    If property was stolen, and defendant received or concealed it, knowing at the time it was stolen, he was guilty of an offense under the statute denouncing the reception or concealing of stolen goods.
    
      2. Criminal law <&wkey;518(2), 530 — Confession LEADING TO RECOVERY OF STOLEN GOODS NEED NOT BE UNDER WARNING AND .WRITTEN.
    Defendant’s confession to having received stolen goods, which resulted in the finding arid recovery of the property, made while under arrest, did not have to be made under warning, and reduced to writing, to be admissible in evidence against him.
    3. Criminal law <&wkey;424(2) — Acts and conduct OF THIRD PERSON AMOUNTING TO A CONFESSION NOT ADMISSIBLE AGAINST DEFENDANT.
    Acts and conduct of the person with whom defendant, accused of receiving stolen goods, pawned such goods, were not evidence admissible against defendant, even though committed in his presence and amounting to a confession; nevertheless the fact that the person turned over the property to the officers was not inadmissible.
    4. Criminal law <&wkey;517(2) — Acts in nature OF CONFESSION CONTRARY TO DENIAL INADMISSIBLE.
    In a prosecution for receiving stolen goods, testimony that defendant, while under arrest, took the officers to a place where he represented they might recover the rest of the goods, part having been recovered already, though he stated that he did not know where they were, held inadmissible, as in the nature of a confession, in the face of the fact defendant had stated he did not know where the property was.
    5. Criminal law &wkey;>424(l) — Facts of possession OF STOLEN GOODS BY THIRD PERSON INADMISSIBLE AGAINST DEFENDANT.
    In a prosecution for receiving stolen goods, testimony as to possession of part of such goods by a third person, when defendant was under arrest and had nothing to do with the conduct of such third person, held inadmissible, though the statements, acts, and conduct of another person, to whom defendant was handcuffed, in relation to the recovery of the goods, were admissible.
    6. Receiving stolen goods <&wkey;9(2) — Instruction MUST FOLLOW INDICTMENT AS TO PERSON WHO STOLE AND PERSON WHO DELIVERED GOODS TO DEFENDANT.
    In a prosecution for receiving stolen goods, under indictment charging their reception from a particular individual after theft by another individual, an instruction authorizing conviction in case of defendant’s reception of the property from anybody after theft by anybody was erroneous.
    Appeal from Criminal District Court, Travis County; James R. Hamilton, Judge.
    Frank Kyle was convicted of receiving stolen goods, and he appeals.
    -Reversed, and cause remanded.
    Dickens & Dickens, of Austin, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment charges appellant with having received from Otto Best a lot of jewelry, knowing same to have been stolen, and that it hdd theretofore been acquired by Roberta Armstrong in such manner as' that the acquisition came within the meaning of the term “theft,” and that appellant, knowing said property to have been so acquired, received and concealed it.

If the property was stolen, and appellant either received or concealed it, knowing at the time of such reception, or at the time of such concealment, that it was stolen, he would come within the purview of the statute. From the testimony of Alberta Robinson it appears that she and Roberta Armstrong and Otto Best went to the residence of Miss Melaskey between midnight and daylight, and that Roberta Armstrong entered the house and committed theft of a box of jewelry, consisting of diamonds set in various forms and other valuable jewelry. It is also shown by this witness that she and Best remained outside, .while Roberta Armstrong entered the house and committed the theft. When' she came out of the house, Best opened the box, discovered its contents, and the three went away. She further testified that on the following morning Best had transferred some of the jewelry of the box to a sack; that she (Alberta Robinson) with Best went to appellant, and that Best handed him the sack and asked him to obtain money on it at a pawnshop. They did not open the sack, and so far as her testimony indicates appellant did not know the contents at the tiine; that he went away and pawned it finally to a party whose name is Vincenti Falcone.

As we understand the statement, this witness is not corroborated as to the theft by the parties named. There is no contention but the evidence excludes the idea that appellant had anything to do with the theft. About 60 days after this burglary and theft, appellant was arrested. He denied strenuously upon the first examination by the officers that he had anything to do* with it, or knew anything about it. Later, however, he admitted that he left the property with Vincenti Falcone and obtained a small amount of money upon it. While the jewelry was very valuable, the defendant and the other negroes who were connected with it seem not to have appreciated that fhet. Appellant in his confession stated that Vincenti Falcone received this property. The officers arrested Vincenti, who went with an officer to some place in East Austin and secured some of the jewelry. This may be a sufficient statement in connection with matters noticed later.

Appellant objected to the confession while under arrest, because same was not reduced to writing and he was unwarned. As we understand the statute, these objections were not well taken. Where property is found in pursuance to a confession, it does not come within the rule of warning and written confession. This question has been before the court in several cases. We therefore do not think the court erred in admitting the. confession of appellant that he carried the' property to Vincenti Falcone. The property was recovered by reason, of appellant’s admissions.

Vincenti was arrested and carried to police headquarters. After conversation had with Vincenti, he was carried to East Austin, and, as before stated, found some of the jewelry and turned it over to the officers. The bill of exceptions reserved to this testimony is of some length, and goes somewhat into details of the acts and occurrences. We are of opinion that the acts and conduct of Vincenti, which amount to a confession as decided in Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247, would not be evidence against appellant, even though committed in his presence. The statements and confession of Vincenti, under the circumstances, could not be used as against appellant, although appellant was present and heard them. He remained silent. See Wright v. State, 37 Tex. Cr. R. 627, 40 S. W. 491; Bradshaw v. State, 68 Tex. Cr. R. 622, 155 S. W. 218; Windham v. State, 67 Tex. Cr. R. 664, 150 S. W. 613; Martin v. State, 57 Tex. Cr. R. 595, 124 S. W. 681.

We do not desire to be understood as holding that the fact that Vincenti turned over the property to the officers would be inadmissible. We think it would be under the decisions; but his acts and conduct, or statements which are tantamount to a confession, could not be used against appellant The,acts and conduct of Vincenti may be considered as confessions, as much so as if made in words. Vincenti may have known the value of the property, and defendant did not, at the time he received it, and the testimony rather indicates such to be the fact. Vincenti’s secretion of the property in order to avoid its being recovered should not be used against appellant, unless in some way appellant authorized its secretion on the part of Vincenti. There is nothing to indicate, as we understand this record, that he instructed Vincenti with reference to the property one way or the other; that he simply carried to Vincenti and pawned it with him for the money that he did receive and went away. The subsequent conduct on the part of Vincenti, showing guilt on his part in concealing it, should not be used against appellant. The damaging effect of this testimony, it occurs to the writer, is evident, and if Vincenti had been upon trial would have been legitimate; but the subsequent acts of Vincenti, after appellant’s connection with the property had ceased, could not be used against him.

Another bill recites that while the witness Morris was testifying for the state he was asked:

“What did the defendant then say? A. Well, he said, we will go get the balance of the goods. Q. Well, did he, or not, make a statement as to where they were? A. No; he did not know where it was. Q. What did you do then? A. I took Mr. Lafe Young, who was then city detective, and carried Frank Kyle, or he carried us; we followed him down Colorado street from the City Hall to the corner of Third and Seventh, and near Seventh, or two doors north of the corner, to a little Mexican barber shop. He had never informed ns, after he left, to which place he was going.”

Here counsel for defendant urged various objections, based upon the fact that defendant was under arrest, and such testimony had no connection with the confession. The court then stated he would admit all acts of defendant that led to the recovery of the stolen property, and would exclude other acts.

“Q. All right; go ahead. A. I think X asked him, on the way down, how far it was, so we could get some way to ride, if necessary, and he said it wasn’t far, and when we got as far as Third street and Colorado he went into the Mexican barber shop — I didn’t know his name— and he asked this man, this Mexican; he said, ‘Where is the old man?’ ”

Here other objections were urged, and the matter seems to have terminated. This testimony was not admissible. Appellant was under arrest, and this was used as a confession against him, or in the nature of a confession, in the face of the fact that he stated he did not know where the property was. Nothing was found on this trip. While the bill is a little indefinite, this testimony should not be admitted.

Another bill recites that while the same witness was testifying he was asked this:

“After you had this talk with Sid Bryant, down there at that stable — you don’t know where he went, but what did Lafe Young do? Did he stay there, or go away somewhere? A. He went away. Q. When did.you next see Lafe Young and Sid Bryant? A. No; Sid Bryant didn’t go with Young. I handcuffed Sid Bryant to Frank Kyle, and took them to the city 'jail, and Lafe only went away. I saw Lafe Young probably an hour after that. Q. Did he have anything in his possession? A. He had four diamonds. Q. What did he have? A. He had four diamonds and a ruby, that was later identified by Mr. Bouchard as his property, or the property of the Melaskey family. Q. Do you know whether these diamonds and the ruby were the stones that came out of a pin belonging to Miss Sallie Melaskey that was taken from the house at the time of the burglary you talked about? A. They were identified as such by the owner.”

This testimony was clearly inadmissible. Appellant was under arrest, and had nothing to do with the conduct of Lafe Young. There was nothing to show that he knew anything about what Lafe Young was doing, or that it was done from any statements of appellant. The statements, acts, and conduct of Bryant were admissible against defendant.

There is a question raised with reference to the charge. Although exception was not properly reserved to the charge, yet it is urged for. reversal. ' We mention it in passing, so that It may not occur upon another trial. The indictment charged the reception by appellant of the alleged stolen property from Otto Best after it had been fraudulently acquired in a burglarious entry of the Melaskey home. The court instructed the jury in- very general terms that if defendant received' the property described in the indictment, and if they should find beyond a reasonable’ doubt the property was acquired by theft, and defendant knew that fact, and that it was over the value of $50, they would find him guilty as charged in the indictment Under this charge appellant could have received the property from anybody, and it could have been acquired by theft by anybody. The indictment charged it was received from Otto Best- after it had been stolen by Roberta Armstrong. Applying the law to the facts, the allegations of the indictment should be followed as that is the criminal charge preferred. It nowhere undertakes to charge the jury as a condition precedent to conviction, they must find that he received this property from Best after it was acquired by Roberta Armstrong by theft

For the reasons indicated, the judgment Is reversed, and the cause remanded. 
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