
    HOYT v. STATE.
    (No. 6142.)
    (Court of Criminal Appeals of Texas.
    March 9, 1921.)
    1. Criminal law <&wkey;528 — Confessions of alleged thief inadmissible in so far as it relates to receiver of property.
    In a prosecution for receiving stolen property, confessions of the alleged thief, made out of the presence of the defendant, were admissible only in so far as it tended to establish that the property in question had been stolen, and was not admissible as to that portion relating to the sale of the property to defendant.
    2. Embezzlement c&wkey;9 — Larceny <&wkey;l5(3) — Taking of goods from store by errand boy theft, and not embezzlement.
    The taking of goods by errand boy from employer’s store at a time when he was not delivering such goods to customers was theft, and not embezzlement; the boy having no care, control, or custody of the goods at such time.
    3. Receiving stolen goods i&wkey;>9(2) — Refusal to give charge presenting theory that goods had been bought in good faith held error.
    In a prosecution for receiving stolen property, defended on ground that the property was purchased in good faith and without knowledge that it had been stolen, refusal to present such defense by affirmative charge on defendant’s request therefor held error.
    4. Witnesses &wkey;>318—Witness’ statements similar to testimony inadmissible before impeachment.
    Exclusion of defendant’s testimony as to statements by a witness similar to his testimony before the state had offered any testimony to impeach the witness held proper.
    Appeal from Nacogdoches County Court; J. M. Marshall, Judge.
    Charlie Hoyt was convicted of receiving stolen property, and he appeals.
    Reversed and remanded.
    Russell & Seale, of Nacogdoches, for appellant.
    ft. H. Hamilton, Asst. Atty. Gen., for the State.
   IATTIMORE, J.

Appellant was convicted in the county court of Nacogdoches county of receiving stolen property of value less than $50, and his punishment fixed at 30 days- in the county jail and a fine of $100.

Appellant received the property in question from one Joe Blount, who was alleged to have acquired the same by theft. The state proved a confession made by Blount, part of which is as follows:

“Joe Blount told me, among other things, that he had stolen, about the 15th of Eebruary, 1920, a pair of shoes and two suits of underwear from Tucker, Hayter & Co., and had delivered and sold same to the defendant, Charlie Hoyt.”

Objection to this as being hearsay, out of the presence and hearing of appellant, was overruled. This was erroneous as to part of said statement. While confessions of an alleged thief are admissible in trials of this character as evidence going to establish the theft of the property in question, such confession should be limited in the charge to said purpose only. Forrester v. State, 69 Tex. Cr. R. 62, 152 S. W. 1041, and statements made in connection with such confession which are inculpatory of. the alleged receiver, are but hearsay if introduced against such receiver, when made out of his presence, and should not be allowed. Richardson v. State, 75 S. W. 505. That portion of said confession relating to appellant was not competent.

We are unable to agree with the contention of appellant that Blount was shown to be such agent of the alleged owner of the property involved as to make his offense embezzlement, and that therefore appellant cannot be guilty of receiving stolen property. Blount was but a delivery boy for such owner of said property, appearing to have no care, control, or custody of goods while in the owner’s store; and his taking of such goods from the store would be theft. It is not shown in this record that the said goods had been delivered to Blount to be carried by him to customers. In the latter ease the contention of appellant would be plausible.

Appellant claimed that he bought said goods from Blount in good faith and without knowledge that same was stolen. The state combated this theory, but it is uniformly held that an affirmative charge should be given presenting the defensive theory if supported by any testimony. No such charge was given, notwithstanding a special instruction upon this issue was asked by appellant. This was error. Grande v. State, 37 Tex. Cr. R. 54, 38 S. W. 613; Stanfield v. State, 73 Tex. Cr. R. 290, 165 S. W. 217.

The indictment contained but one count, and there was no error in overruling appellant’s motion to require the state to elect upon which count it would prosecute.

Appellant attempted to sustain his witness Blount by proving statements similar to his testimony on the trial; such attempt being made before the state offered any testimony to impeach that of said witness. At this stage of the trial the state’s objections to such supporting testimony was properly sustained, and we find nowhere in the record that appellant offered to prove such supporting statements after the state had introduced its contradictory testimony.

In some way, either by charging on purchasing in good faith or by directly stating the principle, the question of the intent of accused in receiving said property should be submitted. Wilson v. State, 12 Tex. App. 481; Arcia v. State, 26 Tex. App. 205, 9 S. W. 685; Trial v. State, 57 S. W. 92; Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58.

For the errors above mentioned, judgment of the trial court will bo reversed, and the cause remanded for new hearing. 
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