
    KLUTING v. STATE.
    (No. 6291.)
    (Court of Criminal Appeals of Texas.
    June 1, 1921.
    Rehearing Denied June 24, 1921.)
    1. Criminal law <S=o403 — Carbon copy of expense bill held admissible as original.
    In prosecution for receiving goods stolen from a railroad, a carbon copy of an expense bill relating to the goods was not incompetent as secondary evidence, where it was shown that no original expense bill was ever made out and delivered by the railroad company, but that in the ordinary course of business two original bills were made out, one of which was kept by the railroad and the other delivered to the consignees, and that in the case of the stolen goods no duplicate bill was delivered to the consignees because the property was stolen prior to its delivery.
    2. Criminal law <®=»l 169(2)—Admission of expense hill held harmless in view of other evidence.
    In a prosecution for receiving goods stolen from a railroad company, the admission in' evidence of a carbon copy of an expense bill relating to the property, if erroneous, was harmless, where it was undisputed in the record that the property was stolen from the railway freight warehouse while in the custody of the railroad agent.
    3. Criminal law <©=359 — Defendant cannot prove conviction of another for embezzlement of goods in question.
    In a prosecution for receiving stolen goods, where the state proved the theft of the goods from the railroad warehouse by the party alleged in the indictment, defendant could not offer evidence of conviction of railroad employees for embezzlement arising out of the same transaction, where such employees were not witnesses in the case.
    4. Criminal law <©=1044 — Objection, after answer without motion to strike, presents no error.
    Where the state abandoned a question to which obection was made and then asked a question, which the witness answered before objection was made thereto, the objection, made after the answer without motion to exclude the evidence, presents no error on appeal.
    5. Receiving stolen goods <®=9 (2) — Requested instruction as to possession different from charge held not required by evidence.
    In a prosecution for receiving goods stolen from a railroad freight agent, evidence that railroad employees who connived at the theft had cheeked the goods into the warehouse, or had trucked them in, does not authorize an instruction requested by defendant that, if those two employees had the care of the property at the time it was taken, and they consented to its taking, the defendant should be acquitted.
    6. Receiving stolen goods <@=^7 (6) — Embezzlement by others, as well as theft as charged, does not prevent conviction.
    In a prosecution for receiving goods stolen from a railway freight warehouse, where the evidence showed that the goods were actually stolen by the person named in the indictment, the fact that two employees of the railroad working at the freighthouse connived at or aided the theft so as to be guilty of embezzlement does not prevent conviction under the indictment.
    7. Criminal law <©=>511 (6) — Evidence held to corrobor'ate accomplices’ testimony.
    In a prosecution for receiving stolen goods, the testimony of the accomplices who stole the goods is sufficiently corroborated bs testimony of the officers that they saw one accomplice deliver the goods to defendant, and that they were taken from his possession.
    8. Receiving stolen goods <®=7(6) — Identification of enough stolen property to support felony charge is sufficient.
    The variance between the quantity of stolen property which the indictment charged had been received by defendant and that shown by the proof is not fatal to conviction, where a sufficient quantity of the property shown to have been stolen was found in defendant’s possession to make the offense a felony.
    9. Criminal law <©=829 (3) — Requested charge, substantially covered in main charge, need not be given.
    In a prosecution for receiving stolen goods, a requested special charge that defendant could not be convicted unless he knew the goods were stolen when he received them was properly refused, where it was given almost word for word in the main charge.
    10. Criminal law <©=370, 371 (2) — Possession of other stolen goods is admissible to show intent and guilty knowledge.
    In a prosecution for receiving goods known to have been stolen, where the defendant denied that the goods were brought to him by the thief in accordance with a previous understanding, and denied guilty knowledge, evidence of defendant’s possession of other stolen property was competent to show his intent and guilty knowledge.
    Appeal from District Court, Dallas County; Robt. B. Seay, Judge.
    Robert N. Eluting was convicted of receiving and concealing stolen property, and appeals.
    Affirmed.
    A. S. Baskett and Allen & Allen, all of Dallas, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   DATTIMORE, J.

Appellant was convicted in criminal district court No. 1, Dallas county, of the offense of receiving and concealing stolen property of the value of more than $50, and his punishment fixed at confinement in the penitentiary for a period of two years.

There were two counts in the indictment, one charging appellant with receiving from Jesse Holland certain property theretofore stolen by said Holland from W. D. Stetler; one charging that he received certain property from James Qualls, which had theretofore been stolen from W. D. Stetler. The second count alone was submitted to the jury. •

By a bill of exceptions complaint is made of the admission in evidence of a certain expense bill; it being claimed by appellant that same was a carbon copy, and that as such it .was secondary evidence, and not admissible unless the loss of the original was shown, or that it was beyond the jurisdiction of the court. By his qualifications to said bill of exceptions the trial court certifies that no original expense bill .was ever made out and delivered by the railroad company, relating to the instant transaction, but that in the ordinary course of business as transacted by said company over which the property in question was shipped to Dallas, two original expense bills were made out, one of which was kept by the railroad company and the other delivered to the consignees upon payment by them of the freight and acceptance of same. Inasmuch as the property involved in. the instant transaction appears to have been stolen from the possession of the railroad company’s agent prior to its delivery, no duplicate expense bill had been delivered to the consignees thereof, and as the transaction is here made to appear, the only expense bill in existence was the one offered in evidence by an employee' of said railroad company. We see no error in admitting same in evidence. The contents of said expense bill .would not appear to he very material as affecting the guilt or innocence of the accused in this case. That the property alleged to have been stolen by Qualls, and by him delivered to appellant, was in fact in the freight warehouse of the Cotton Belt Bailway Company, at Dallas, Tex., and in the care, control, and management of their agent prior to the time when same was taken by Qualls, seems to be without dispute in the record, and there would appear no necessity for the introduction of said expense bill. Its introduction, if erroneous, would appear to be harmless. See Dawson v. State, 32 Tex. Cr. R. 535, 25 S. W. 21, 40 Am. St. Rep. 791.

Appellant offered in evidence certain indictments against one Marable, charging embezzlement, and also judgments of conviction upon pleas of guilty, against the same party. Marable was not a witness in this case. That such indictments and judgments existed would not seem material to any issue herein. They could not prove that the property in question was or was not acquired by theft or embezzlement. It appears to be the well-settled rule that, inasmuch as the burden is upon the state to prove the theft of the property in question by the party who is alleged to have so acquired same, it is admissible to prove his indictment and conviction therefor, and it is so held in the case of Cooper v. State, 29 Tex. App. 8, 13 S. W. 1011, 25 Am. St. Rep. 712, cited by appellant. See Meek v. State, 71 Tex. Cr. R. 433, 160 S. W. 698. The fact that some other party than the alleged taker may have been indicted for another offense involved in or growing out of the same transaction, such party not being a witness, would not seem to us to be material.

As qualified by the trial court, bill of exceptions No. 4 shows that a question therein set forth was asked by the state, but upon objection being made by appellant, without waiting for a ruling of the court, the state abandoned said question, and asked the witness if he compared the numbers on a certain bill of lading with those on the boxes which contained the property in . question, to which he replied that he did. He was then asked by the state, “Did they correspond?” He answered, “Xes, sir.” Appellant’s attorney then said, “We object to that.” This ended the matter. No motion to exclude was made. The bill of exceptions presents no error.

Ownership of the property in question was alleged in W. D. Stetler, local freight agent of the Cotton Belt Railway Company, at Dallas. The property was taken by James Qualls, a negro driver of a freight wagon, from the freight warehouse of said railway company, and on the trial Qualls testified that he took said property away from said warehouse and delivered it to appellant. This witness said that the two cases of hosiery were sitting in the warehouse near the door, and that he and Jim Tom Simpson loaded them on Simpson’s wagon, he rolling out one case and Simpson the other, and that Simpson drove his wagon a short distance up Main street from the freighthouse, and that the boxes were then transferred to Qualls’ wagon, and he took them out to appellant’s place of business. A negro trucker in said warehouse by the name of Small was a party to the criminal transaction, and we gather from the evidence that Small, or Small and Simpson, had made a trade or agreement with appellant relative to what he was to pay for the two cases of hosiery when delivered to him. It also appears that the proceeds were to be divided between Qualls and Small and some other party. Qualls testified at the time he and .Simpson rolled the boxes out of the warehouse, Small was standing there, and told him where to take them. It also appears from the record that a check clerk in the employ of said railway company, whose name was Marable, and whose duty it was to check freight into the warehouse from cars, was also involved in the transaction. The office of Mr. Stetler. the local freight agent, wás in the building, and he testified that he had the exclusive care, management, and control of property in the freight warehouse before it was delivered to the consignees. Said ownership seems undisputed, and unquestionably attached to the property in question at the time same was moved from the warehouse by Simpson and Qualls. The requested charges set out in bills of exception Nos. 5 and 6 were properly refused. The effect of same was that, if Small or Marable had the actual care, control, and management of said property at the time it was taken, and they consented to the taking by Qualls, or, having such possession, if they or either of them took said property in connection with Qualls, in either event the jury should find appellant not guilty.

We are of opinion that said charges were correctly refused for more than one reason. There appears no evidence of the exercise by Marable or Small of that character of care, control, and management which, in the law of theft, constitutes ownership. There seems no dispute but that Mara-ble’s only connection therewith was to check it from the cars to the warehouse, and that of Small was to truck it from the cars to its proper place in the freight warehouse.

The fact that said parties as employees of the railway company colluded, conspired, or acted with Qualls, and aided, abetted, or permitted him to take property from the freight warehouse in order that he might carry same to some persons with whom agreements had been made to receive, conceal, or dispose of same, might in a proper case make said employees guilty of embezzlement as the appropriators of property which had come into their possession by virtue of their employment; and it might be that Qualls, by virtue of the comprehensive character of the law of principals, might, in a. proper case, if the prosecuting officer saw fit to so proceed, be prosecuted for embezzlement as a principal with said employees. Conversely, Qualls, who was in no sense connected with said railway company, and who actually took from the warehouse the property in question, appropriated same, and delivered it to this appellant for a consideration to be divided between Small, Marable, and himself, was undoubtedly guilty of theft per se, and at the option of the prosecutor might be charged and tried therefor. This is said, bearing in mind that the state may carve out once, and the doctrine of jeopardy and former acquittal or conviction might be invoked when necessary and proper to prevent more than one prosecution for the same offense. We do not think it could be pleaded as a defense by Qualls against a prosecution for theft of said property, that such prosecution was not legal because of the fact that he might have been prosecuted as a principal with said employees for the offense of embezzlement. It follows that we are of opinion that appellant could not defend against a prosecution for receiving and concealing stolen property, upon the ground that the servants of the railway company, who were implicated in said criminal enterprise, might be guilty of embezzlement, and might theretofore have been tried and convicted therefor, and that they might have given their consent to the alleged taking. The punishment for theft and embezzlement, and also for receiving and concealing stolen or embezzled property, are identical, and the essential characteristics of theft and embezzlement are similar. The agency of the taker in embezzlement, and that there must have been an actual conversion of the property in question, seem to be the only substantial differences. As far as appellant is concerned, his punishment as the receiver and concealer of the embezzled property would have been the same as that of the receiver and concealer of said property if stolen, and we do not think it material in his case to have submitted to the jury any question of embezzlement on the part of employees of the railway company. If under the law and the facts Qualls .was guilty of theft, then the only remaining questions in the case pertain to appellant’s reception of said property in such manner as to make his connection therewith that of a receiver with guilty knowledge.

Appellant’s special charge No. 2, seeking to have the jury told that there was no corroboration of the accomplices Small and Qualls, and that there was a fatal variance between the quantity and description of the property in the indictment and that shown by the proof, seems correctly refused. The officers .who arrested appellant testified that they saw Qualls deliver the cases of hosiery to Mm, and that same were taken from his possession, which is corroboration, and the proof showed the identification of a sufficient amount of the property alleged to have been taken to make same a felony.

A special charge that appellant could not be convicted unless he knew at the time he received the property from Qualls that same was stolen was properly refused because of the fact that it .was given almost word for word in the main charge.

Bill of exceptions No. 10 urges error in refusing the following special charge:

“Gentlemen of the jury, in this case you are charged that there was certain testimony admitted before you concerning some cigars and some suits of clothes at the house of the defendant. You are charged that there was no testimony introduced either that the defendant received said property, cigars, and clothes, from James Qualls, or that either said cigars or clothes were stolen property. You will therefore not consider said testimony in this case for any purpose whatsoever, but same is hereby withdrawn from you.”

The officer who arrested appellant and found in his possession the alleged stolen property testified as follows:

“I know the defendant, and have known him to know who he was since June 16, 1920. The first time I ever saw him was on June 16th at his place of business. Mr. Richards and myself made the arrest. We found about 175 suits of clothes, three eases of hose, and a case of cigars there that belonged to or were claimed by other persons. The two cases of hose and a case of cigars were just inside the front door, and the suits and one case of hose were in the back bedroom.”

Appellant himself testified that he found 350 suits of clothes in a box in his room, with the lid off the box, on the morning of the day of his arrest, and that he did not know where same came from, also that there was a case of cigars in said room at the same time, of wMch he knew nothing more than that it was brought to his place and placed in his room by a negro named Holland, but that appellant had not bought it. It seems that possession of other stolen property by the accused at the time he is found in possession of that alleged to have 1 been stolen in the case on trial may he shown for the purpose of being considered as evidence of certain material elements in making out a ease of theft or receiving stolen property. The officer testified that the property so found by him in appellant’s possession belonged to and was claimed by other persons. As stated, it ,was found in appellant’s possession. This circumstantially showed him to be either the taker or receiver, and the trial court would not have been justified in instructing the jury not to consider the fact of his possession thereof for any . purpose. Appellant denied any guilty connection with the cases of hosiery involved in the instant transaction, and said same were brought to his store by the negro Qualls without any previous understanding or arrangement, and that he could give no reason why same were so brought to his premises. This being true, the fact that property belonging to other people and afterwards claimed by them was found in his possession, the presence and possession of which by him occupied substantially the same attitude as that directly involved herein, would seem admissible as affecting his intent and guilty knowledge.

We have examined all of the contentions made by appellant in this case, and find ourselves unable to agree with same, or that the record shows any reversible error. ■

The judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

The motion for rehearing in this case presents no new matter for the consideration of the court, but, in substance, is an averment that this court was in error in not sustaining the assignments of error as originally presented. The facts of this case were somewhat complicated, and received our earnest consideration in the first instance, and we believe a proper disposition was reached. A further discussion of it at this time by the writer would serve no useful purpose, as it would be but an expression of his individual views in addition to what appears in the original opinion.

The motion for rehearing will be overruled. 
      <S=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes 232 S.W.—20
     
      <S=Eor oilier cases see same topic and KB Y -NUMBER in all Key-Numbered Digests and Indexes
     