Nourse v. State

2 Tex. Ct. App. 304

Opinion

Ector, P. J.

This was a prosecution against the defendant for receiving and concealing four bales of cotton, knowing the same to have been stolen, under Article 745 a of the Criminal Code of this state, which reads as follows : “If any person shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, he shall be punished m the same manner as "by law the person stealing the same would be punished.” ,

Theft is defined in the preceding Article of the Code as follows : “ Theft is the fraudulent taking of corporeal personal property belonging to another, from his possession, or from the possession of some person holding the same for him, without his consent, with intent to deprive the owner of the. value of the same, and to appropriate it to the use or benefit of the person taking.”

The 1st error assigned by the defendant is “that the court erred in its general charge to the jury in assuming that defendant had received or concealed cotton, the same being a charge upon the weight of evidence.” Take the entire sentence in which the words objected to are used, and we do not believe they were calculated to mislead the jury, or that they did prejudice the rights of the defendant. The charge was not excepted to by the defendant.

The 2d assignment of errors is “ that the court erred or misled the jury in its general charge by authorizing them to find defendant guilty of receiving stolen property, or of concealing stolen property.” This assignment is not well taken. Under the indictment, if the evidence was sufficient, the jury were authorized to find the defendant guilty of fraudulently receiving stolen property, or of concealing it, knowing the same to have been stolen. They are both grades of the same offense. It is the duty of the judge, in such cases, to distinctly instruct the jury as to the law which is applicable to the evidence, in defining the several grades of the offense embraced in the same indictment, and of the jury to find of which particular grade, if any, the defendant is guilty.

In the 3d assignment of errors the defendant insists that “ the court erred in refusing to give the instructions asked by the defendant.” We think that the court in its general charge to the jury had distinctly and concisely set forth the law applicable to the case, and that it properly refused to give the special instructions asked by the defendant. The jury found the defendant guilty, and assessed his punishment at two years’ confinement in the penitentiary.

The attention of this court is specially called to the motion in arrest of judgment; and upon the action of the judge who presided at the trial, in overruling this motion, the counsel for the accused have made a very ingenious brief. The ground upon which the motion in arrest of judgment is predicated is that the bill of indictment nowhere alleges that George H. Nourse received, or concealed, the cotton therein described, without the consent of the owners thereof, with the fraudulent intent to deprive said owners of the value of the same, or to appropriate it to his (said Nourse’s) own use and benefit.

We do not believe that an indictment drawn under said Article 745 a of the Criminal Code must contain these allegations to make it a good indictment. The statute which we have quoted makes no such requisition. The indictment does not follow the usual precedents for this offense given by Mr. Wharton, or Mr. Archbold. It, however, fully sets out and describes the acts constituting the theft, gives all the constituents of the crime, and states that the property so stolen “ was then and there feloniously and fraudulently received and concealed ” by the defendant, “ he, the said George H. Nourse, then and there well knowing that said four bales of cotton had been acquired by another in such manner as that' the acquisition comes within the meaning of the term theft, and well knowing the same to have been acquired by theft,” etc. The indictment states the offense-so plainly that a man of ordinary capacity would readily understand the crime charged.

In some of the American states the statute, in defining the offense of receiving stolen goods, makes it one of the constituents of the crime that the property should be received, not only with a guilty knowledge of the fact that it was stolen, but also with the intent to defraud the owner; and in all the reported cases we have found, in which it has been held necessary to charge in an indictment for receiving-stolen goods that they were received with an intent to defraud the true owner, the decisions were made under statutes which rendered this necessary.

Our statute, and those of most of the states of the Union, are different. In an indictment for receiving stolen goods, knowing them to have been stolen, under our existing statute it is not necessary to charge the defendant with having received the goods with the intent to defraud any person. See the decision in the case of Gandolpho v. The State, 33 Ind. 439, which is a case exactly in point, and made under a statute similar to ours as to this offense. If the receiver of stolen property received it for the purpose of aiding the thief, or for concealing it, Avithout expecting-to receive any reward thereby, he is equally guilty as if he had bought it from the thief, with a knowledge that it Avasstolen Avith the intent to defraud the OAvner.

The 1st point to be proved on a trial under an indictment for receiving stolen goods is that the goods were stolen; 2d, a guilty knowledge on the part of the receiver that they were stolen. This knowledge is to be collected from all the various circumstances of the case. The usual evidence is that the goods were bought for a nominal sum, under suspicious circumstances. Proof that he concealed the goods is presumptive evidence of the same effect. Roscoe’s Cr. Ev. 822.

Under the common law it was not necessary to charge in an indictment for theft that the property was taken without the consent of the owner, for the charge that it was feloniously taken included the idea that it was taken without the consent of the owner. The statutes of 7 & 8 George 4, c. 29, made the offense of receiving stolen goods to consist of receiving the goods knowing them to have been stolen, and Tindall, C. J., so held in Rex v. Jervis, C. C. & P. 156. (2 Russ. on Cr. 243, 246.)

There is no reason Avhy an indictment against the receiver of stolen goods should charge that the property was received by the accused Avith the intent to defraud the OAvner. When the receiver knows that the goods have been stolen by the thief, then, if after the offense of theft is complete, he receives or conceals the stolen property, to aid the thief in escaping' detection, or to assist him in disposing of it, the offense is complete. As has been so well said by the assistant attorney general, in his brief, such a receiver of stolen property is to be punished, not for depriving the owner of the value of his goods, nor for unlawfully appropriating the goods to his own use without the consent of the true OAvner thereof, but because he receives and conceals them, knowing them to be acquired by theft. “ The intention,” says Mr. Eoscoe (822), “ is not material, provided he knew them to be sto.len. He is punished, as it were, for assisting the thief after the commission of the offense of theft, for aiding after the fact, and thereby making it profitable to steal.” The receiver of stolen goods was anciently guilty of only a misprision , or compounding a felony. Afterwards, under an old English statute, he became accessory after the fact to the thief. Later legislation in England and the United States generally has made this offense a substantial one.

Mr. Bishop, in treating of this crime, says : “First, as to the intent. The question of the intent is partly answered in the proposition that the person receiving the stolen goods must know "them to have been stolen. Moreover, the statutes do not require that the receiver should act from motives of personal gain ; if his object is to aid the thief, this is enough. So it is enough if his object is to get from the owner a reward for restoring the goods to him.” 2 Bishop’s Cr. Law, sec. 1093.

The judge who tried this case fully and fairly submitted to the jury the question of the fraudulent intent of the accused in receiving the stolen property, as should be done in all such cases. The court also gave to the jury the law governing the corroboration of the testimony of accomplices, in the exact words of the statute, which is as follows:

“ A conviction cannot be had upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the offense committed ; and the corroboration is not sufficient if it merely shows the commission of the offense.” Code Cr. Proc. (Pasc. Dig., Art. 3118).

Before the adoption of our Code, the rules of evidence known to the common Lav of England, both in civil and 'Criminal cases, governed in this state, and they still govern, except where they are in conflict with the provisions of our Code of Procedure, or of some other statute of this state. Under the common buy the rule of evidence as to the corroboration of accomplices is somewhat peculiar. Says Mr. Roscoe : “It has been repeatedly laid down that a conviction upon the testimony of an accomplice, uncorroborated, is legal. The point was considered by the twelve judges, and so decided, in Rex v. Atwood, 1 Lea, 464, and again in Rex v. Durham, 1 Lea, 478.” Roscoe’s Cr. Ev. 120, 121, and authorities cited. The evidence of an accomplice is altogether for the jury (under the common-law rules of evidence), and the jury, if they please, may act upon it without any confirmation of his statement; but it is held proper for the presiding judge to advise them not to convict if the testimony of the accomplice is uncorroborated. Under Article 3118 of our Code, the testimony of an accomplice must be corroborated to support a conviction. It has been decided both by the supreme court and the court of appeals in this state that the term “accomplice,” as used in Article 3118, applies, not only to accomplices in a technical or restrained sense, but to all witnesses who are particepes criminis, whether as principal or accessories. Bob Irwin v. The State, 1 Texas Ct. of App. 301, and authorities therein cited.

It will be seen that, to justify a conviction on the testimony of an accomplice, there must be some evidence which, of itself and without the testimony of the accomplice, lends in some degree to connect the accused with the commission of the crime. The supreme court of California (in the case of The People v. Melvane, 39 Cal. 614) say: “ The corroborative evidence may be slight and entitled to but little consideration ; nevertheless, the requirements of the statute are fully fulfilled if there be any corroborating evidence which of itself tends to connect the accused with the commission of the offense.” This decision was rendered under a statute very similar to ours in regard to the corroboration necessary to be had to the testimony of an accomplice to support a conviction. Article 375 of the Code of California is as follows : “A conviction cannot be had upon the testimony of an accomplice unless he be corroborated by such other evidence as shall tend to connect the defendant Avitli the commission of the offense, and the corroboration shall not be sufficient if it merely shows the commission of the offense or the circumstances thereof.” It is a mistaken idea to suplióse that the corroborating evidence must conclusively of itself connect the defendant with the commission of the offense. If so, there would be no use for the testimony of the accomplice.

This leads us to consider the evidence upon which the prisoner was convicted. Thomas Logan and Lucien Debazier were jointly indicted and charged with the theft of four bales of cotton, each of the value of $50, the property of Julius Runge, Julius Kauffman, and Charles F. Hohorst, copartners under the firm-name of Kauffman & Runge. At the same time the grand jury found the indictment against the defendant for having received the identical four bales of cotton from said Logan and Debazier, knowing the same to have been stolen. The prosecution proved that four bales of cotton, the property of said firm of Kauffman & Runge, were stolen from the Shippers’ Press, in the county and city of Galveston, about February 10, 1877, as alleged in the indictment. The court, on the application of the district attorney, entered a nolle prosequi as to said Logan and Debazier in the case against them, and they were then placed upon the stand as witnesses for the state against the defendant, Nourse.

Lucien Debazier testified that “ I know the defendant, George H. Nourse ; he keeps a junk-shop and cotton-pick-cry in the city and county of Galveston, on the corner of Mechanic street and 28th street. I went to see defendant, and he told me that he would take all the cotton I could get. Thomas Logan and I stole the cotton out of the Shippers’' Press, in the city and county of Galveston. We stole eight bales in all. Defendant gave us thirty dollars a bale for it. It was understood that the bales averaged O five hundred pounds. We went to the Shippers’ Press, and I got over the gate and opened it, and then Thomas Logan and I rolled the cotton out. We rolled it across to the defendant, at his place of business, corner of Mechanic and 28th streets. We took the cotton there between the hours of one and three o’clock at night. I would go to the window and rap on it, and he would get up and open the back gate, take charge of the cotton, and strip off the bagging at once. Do not know where he put the bagging. I told him the cotton was stolen. He wanted me to tell him where from, but I would not. Thomas Logan proposed the stealing to me. I got forty dollars of the money. We would deliver the cotton at night, and get the money next day. We first commenced stealing the cotton in November, A. D. 1876. The last four bales were stolen early in February last, just before Mardi Gras day. We delivered these four bales at night, between the hours of one and three, and got pay, thirty dollars a bale, for it from defendant. * * * Am just from Galveston county jail, where I have been confined for stealing four bales of cotton, for which defendant is being prosecuted for receiving and concealing, knowing the same to be stolen; knew I was stealing when I took It. I am telling the truth, and would testify to the same facts if I knew I was going to be prosecuted. Will be nine.teen years old the 17th day of next month.”

Thomas Logan testified to the same facts as Debazier in regard to the theft of the cotton by himself and Logan, and the receipt of it by defendant, who (the witness says) know the cotton was stolen when he received it.; that Debazier collected the money for the cotton from defendant after it was delivered; that he, Logan, got the largest portion of the money (about $200 of it). Logan’s testimony differed from Debazier’s in this : that Logan denied having tempted or induced Debazier to go into the thieving speculation of stealing the cotton.

A. H. Perry testified: "Am clerk of the Shippers’ Cotton Press in the city and county of Galveston. Eight bales of cotton have been missed from the Press. The four bales mentioned in the indictment were missed about the 10th of February last. The cotton belonged to Kauffman & Runge. The four bales had the following marks and weights, viz. r [G], No. 18, 535 pounds ; G D N C W, 596 pounds ; C L, No. 323, 460 pounds; M A X B N S H, 542 pounds. Shortly after missing the cotton I saw the bagging at George H. Nourse’s. It corresponded in the marks and weights with the four bales which were taken from the-Press. Do not know who took it. (The bagging was here-brought into court and identified by witness.) It is identical in marks and weights with that taken from the Press. The cotton is worth, and was at the time worth, fifty or sixty dollars a bale.”

H. Huber testified: “Am a clerk for Kauffman & Runge. The firm had four bales of cotton stolen from the Shippers’ Press, where it was stored. Marks and weights on the-bagging same as that in Perry’s evidence. The bagging in court I identify as the bagging on the cotton lost. It is the-, same as that we lost.”

James V. Riley testified: “Am a policeman and detective. James Norton and I found the bagging now in court at the defendant’s, George H. Nourse’s, in his yard on. the corner of Mechanic and 28th streets, in the city and county of Galveston. We made a search for the bagging. We first ripped up the flooring in a back shod of his, and there we found the bagging of two bales ; we then saw some fresh dirt in one corner of the yard, and dug up the bagging of two more bales. It was buried about two and a half or three feet in the ground. This is the bagging we found, here in court. We found it on the 19th of February, 1877.”

James Norton testified: “I am a detective on the police, force of Galveston. James V. Riley and I went to execute a search-warrant for eight bales of cotton, on the premises of defendant, corner of Mechanic and 28th streets. We told the defendant what we wanted, and he said you shall not take this cotton until you find an owner for it. ’ ’ * * * “We found eight bales of cotton' on his premises, and took them in charge. Neither of the bales were marked like the bagging found, and here in court. They had new bagging on them; hence we hunted for the old bagging, and found it as I have said.” * * * “ The eight bales of cotton found on defendant’s premises were marked as follows: No. 86, No. 90, No. 95, No. 96, No. 52, No. 41, No. 39. Marked N 76.”

The evidence on the part of the state shows a state of things in relation to the prisoner, such as would be naturally expected to exist if the evidence of the accomplices was true, and not likely to have existed if the same was false. The defendant offered no evidence. The court properly overruled defendant’s motion for a new trial, and motion in arrest of judgment.

We further believe that there is sufficient evidence in the record, independent of the testimony of the accomplices, tending to connect the defendant with the offense committed, and that the entire evidence is sufficient to support the verdict of the jury in finding that the defendant fraudulently received the cotton described in the indictment, knowing the same was stolen; and the facts established by the entire evidence are not only consistent with the hypothesis of the defendant’s guilt, but do exclude every other reasonable hypothesis.

For these reasons the judgment of the lower court must be affirmed.

Affirmed.