
    HARPER v. STATE.
    (No. 5897.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1921.)
    1. Receiving stolen goods <&wkey;>6 — One helping to steal property not guilty of receiving same from his confederate.
    Where two persons jointly steal the goods, one cannot be guilty of fraudulently receiving stolen property from the other.
    2. Receiving stolen goods <&wkey;>9(l) — Evidence held insufficient for submission of case to jury.
    In a prosecution under indictment charging automobile theft in one count and the fraudulent receiving of stolen property in another count, where the state’s testimony, if believed, proved that defendant helped to steal the automobile, and defendant’s testimony, if believed, proved that he had purchased automobile in good faith, the submission of whether defendant had fraudulently received stolen property held error, since, under the evidence, he was either guilty of stealing the car or was a good faith purchaser thereof.
    3. Indictment and information <&wkey; 10— Return of indictment charging the fraudulent receiving of stolen property from unknown owner held error.
    Where defendant claimed to have purchased automobile from specified person, and grand jury had in its possession, at the time it returned the indictment, the bill of sale to defendant from such person, it was error for the grand jury to charge defendant with fraudulently receiving the automobile from an unknown owner, without charging that he had received it from the person from whom he claimed to have purchased it in good faith.
    4. Receiving stolen goods <&wkey;8(!) — State required to disprove defendant’s theory that he purchased property in good faith.
    In prosecution for fraudulently receiving stolen property, wnere the state produced testimony as to statements of defendant showing that he bought the automobile from a certain person, that he paid such person for it, and received a bill of sale therefor, it was incumbent on the state to prove that defendant’s theory that he was a good-faith purchaser from such person was false.,
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    M. A. Harper .was convicted of receiving stolen property, .and be appeals.
    Reversed and remanded.
    Noah Roark, W. W. Nelms, and Williams, Dougherty & Muse, all of Dallas, for appellant.'
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

The indictment against appellant contains two counts, one for the theft of an automobile, the property of E. L. Davenport, and the other for fraudulently receiving the property of E. L. Davenport from some person to the grand jurors unknown.

There are quite a number of very interesting questions which, in the judgment of the writer, would require a reversal, most of which he deems unnecessary to discuss in view of the attitude the record presents the case.

The state’s case is made by the witness Woolsey to the effect that he and appellant had an understanding to steal an auto and were driving in appellant’s car down one of the streets of Dallas. At a certain point they discovered a car and appellant said he would take it and did, and that he (Woolsey) then drove appellant’s car out to appellant’s residence, and the next day they took the stolen car and changed the numbers, describing the process of filing and stamping new numbers; that they took the stolen car to Ft. Worth, and there he executed a bill of sale under the name of Berryfield; and that this bill of sale was acknowledged before a notary public'. This is the testimony of the accomplice, Woolsey. Appellant’s testimony is to the effect that he was not out with Woolsey; that he did not steal or assist in stealing the car with Woolsey, and had nothing to do with the transaction about which Woolsey testified. His testimony while on the witness stand contradicts everything Woolsey said with reference to the matter. He himself testified, and was supported by several other .witnesses, that he bought the car from a man named Butler, who drove it to his barber shop out in the direction of the exposition grounds. These witnesses testified practically in the same manner and in the same way that Butler drove to appellant’s barber shop and offered the car for sale. One of the witnesses testified that he wanted to buy the car and offered $300 for it; that it was a Ford car and was not in a very good condition. Butler declined to sell for that amount, asking $400. Another one declined to buy it because he did not have the money with which to purchase. Finally appellant made a trade with Butler and agreed to pay him $400, and each put up a forfeit of $100. Butler and appellant were to consummate the trade the next day. He went to Ft. Worth the next day to consummate the trade and pay for the car, and Butler went before a notary public, a lawyer in Ft. Worth, whose name was .Smith, and there the bill of sale was executed and acknowledged before this notary. After this occurred appellant had the car repainted and a top put on it. It seems the car did not have a top at the time he purchased it. The expense of this painting and fixing the car cost him $150, and he had it fixed up for the use of his family, and they drove about the city of Dallas with it two or three months when some private detectives approached him with reference to the car. A conversation occurred and among other things he told them that he bought the car; they asked from whom, and he said he did not recollect the name, but that he had a bill of sale and would get it. He got the bill of sale and turned it over to the officers. The bill of sale was signed by Butler, as before stated. That fact was not questioned, but was proved by the testimony on both sides. The whole matter was amplified before the jury by the testimony of the officers and defendant’s testimony as well. There was a great deal of testimony and details in reference to whether the numbers on the car had been changed or not, some to the effect that they had not been and some to the effect that the numbers had been changed. The court charged upon both counts. The jury acquitted of theft and convicted of receiving from some party to the grand jurors unknown, as charged in the indictment.

One of the contentions is that the conviction cannot stand because the grand jurors knew at the time they returned the indictment from whom appellant received the car; that he had turned over his bill of sale to the officers long prior to the return to the indictment;’ and that there was a copy made and the bill of sale returned to him, or a copy thereof, one or the other, the officers retaining the other. This was in their possession. They knew all these facts and went before the grand jury and by the slightest diligence the grand jury could have known and doubtless did know that appellant claimed to have bought the car from Butler, and had a bill of sale from .Butler acknowledged before a notary in Ft. Worth. This notary, it seems, did not appear as a witness in the trial for either side, but the bill of sale disclosed the name of the notary and his residence. The state could have produced him if necessary, for they were placed on notice.

There is no evidence in the record that appellant received this car from anybody except from Butler, unless it be the statement of the supposed joint thief, Woolsey, who testified he went with appellant to Ft. Worth and executed a bill of sale under the name of Berryfield. If such bill of sale was executed, it was not further shown than by the testimony of Woolsey. It is a self-evident proposition that appellant could not be charged with or convicted for receiving the stolen car from Woolsey. The idea of fraudulently receiving stolen property does not convey but excludes the idea that joint takers can be receivers from each other under such circumstances. If Woolsey’s testimony is to be credited, he and appellant jointly stole the car, both being present and principals in the transaction, and that he acted with him throughout in secreting it, and so far as his testimony shows, is evidence of the fact that the car was stolen by them. Therefore his reception of it from Woolsey under the name of Berryfield, or any other name, could not constitute receiving stolen property. This was but the act, if true, of both concealing, covering up, and fabricating testimony to cover up the original taking in which both participated. Then the only other theory upon which appellant could have been convicted for receiving was that he received it from Butler knowing at the time it was stolen. If appellant stole the car, he knew it was stolen, and his reception from Butler under the circumstances would not constitute receiving stolen property, for he knew that the car Butler brought to him and sold him was the car that he himself had stolen. This would be but another act of his concealing the fact of the theft, and would be evidence going to sustain the state’s theory of the original taking. There is no evidence that appellant knew that Butler had stolen the car, and the state’s evidence excluded it. So if appellant bought the car from Butler, he either bought it innocently or he bought it knowing it was the car he had stolen, and in either event he could not be guilty of fraudulently receiving the stolen property. The state did not undertake to controvert appellant’s theory of the case except as already stated. So we are of opinion that the count charging'reception of fraudulently receiving the property from an unknown party was not sustained. If he received it from Butler the grand jurors knew it, or could have known it, and should have so charged in the indictment. If he received it from Woolsey under the name of Berryfield, of course, the question of receiving stolen property was disproved by the state’s testimony. There is nothing, as we understand this record, to show that Butler stole the car, or that he had received it from somebody who had stolen it, and that appellant knew that fact when he purchased the car. All the testimony shows that he either bought the car in good faith or that he committed the theft. The court should not have submitted the issue of receiving stolen property, and the judgment, for this reason, must be reversed, inasmuch as the facts do not sustain it.

The indictment is also vicious in charging the reception from an unknown owner. If the grand jury did not believe that he received it from Butler with the facts before them, they could have charged such reception, and then in another count charged the theory that he received it from some unknown party; but with those facts before the grand jury they were not permitted to ignore that condition of the record. There is no evidence he received the car from any one except from Butler.

There is another view of it: The state put in statements of appellant showing that he bought the car from Butler, and that he paid him for it, and that Butler acknowledged a bill of sale to him. It was produced and shown before the jury and permeated the case. It would therefore devolve upon the state to show this theory was false, and the jury should have been so instructed.

There were other questions raised with reference to the introduction of testimony, the refusal of special charges, and comments of the court on the introduction and rejection of testimony, some of which would require a reversal of the judgment, but a discussion of those matters is pretermitted.

The judgment is reversed and the cause remanded. 
      other cases see same topic and KEY-NXJMBBIt in all Key-Numbered Digests and Indexes
     