Sherrad v. State

Court of Criminal Appeals of Texas

Sherrad v. State

318 S.W.2d 900, 167 Tex. Crim. 119, 1958 Tex. Crim. App. LEXIS 3524

CourtCourt of Criminal Appeals of Texas

DecidedDecember 17, 1958

Docket30003

StatusPublished

Cited by8 cases

This text of 318 S.W.2d 900 (Sherrad v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sherrad v. State, 318 S.W.2d 900, 167 Tex. Crim. 119, 1958 Tex. Crim. App. LEXIS 3524 (Tex. 1958).

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Opinions

MORRISON, Presiding Judge.

The offense is sale of marijuana; the punishment, thirteen years.

We will discuss the evidence in the light most favorable to the state. Agent Bob Richards of the Narcotics Division of the Texas Department of Public Safety testified that in June, 1956, [120]*120while working undercover in the city of Dallas, he caused himself to be placed in jail where he got to know certain inmates there present; that upon his release he made his way to an establishment known as the House of Barbecue, and there became acquainted with the appellant who was there employed; that after a lengthy conversation the appellant offered to sell, and he agreed to buy, one pound of marijuana for the price of $50.00; that, since the appellant did not have the marijuana available and since Richards did not have the entire $50.00 on his person, it was agreed that Richards should return the following day and receive the marijuana; but that before they parted he paid the appellant $10.00 of the agreed purchase price and that he did not thereafter see appellant. Richards testified further that he returned to the House of Barbecue the following morning and was approached by one Don Robson, the appellant not being present, who told him that the “stuff” was ready; that he paid Robson $40.00 and received instructions as to where he might find the marijuana cached. Richards followed Robson’s instructions and found the sack which was stipulated to contain marijuana. At no time in Richards’ conversation with Robson was the appellant’s name ever mentioned nor had the appellant mentioned the name of Robson in his conversation with Richards.

The state has urged the very novel contention that the “sale” of the narcotic drug for which appellant was convicted took place on Richards’ first visit to the barbecue establishment and was a complete transaction when appellant offered to sell to Richards one pound of marijuana which he did not have available. If this was a transaction for which the appellant was convicted, then this case must be reversed because of admission in evidence of the hearsay testimony concerning' the later transaction between Robson and Richards. Roebuck v. State, 85 Texas Cr. Rep. 524, 213 S.W. 656; Anderson v. State, 87 Texas Cr. Rep. 641, 224 S.W. 782; Oakley v. State, 125 Texas Cr. Rep. 258, 68 S.W. 2d 204; and 18 Texas Juris., Sec. 60, p. 123, and cases there cited. If the conviction was for that transaction, the evidence concerning the transaction between Robson and Richards was hearsay because it was had outside of the presence of the appellant and, under this record, no connection is shown between appellant and Robson. The record does not show that appellant and Robson even knew each other or were ever seen together. It is shown that the appellant was employed at the' House of Barbecue, but no such showing is made as to Robson. The most the evidence shows is that two different men on separate days and not in company with each other and at different times talked to a state’s witness in a public place about the sale [121]*121of marijuana. If the conviction was had for the first transaction between appellant and Richards, the testimony about the transaction between Richards and Robson was clearly hearsay as to appellant.

If the conviction was based wholly or in part upon the transaction between Robson and Richards, it must be upon the theory that appellant was co-principal with Robson in the sale of marijuana by Robson to Richards.

There is not in this record in even the remotest degree any evidence which establishes or tends to establish that the appellant was a co-principal with Robson as “principal” is defined in Article 65 of the Penal Code and in the four succeeding1 articles which specify the different situations in which one may become a principal or accomplice in crime. It might here be remarked that the appellant was convicted as a principal offender and was not charged with being an accomplice.

If, as a matter of law, a sale occurred when Richards talked to Robson and took delivery of the marijuana, then the trial court was clearly in error in failing to charge on the law of principals and the law of circumstantial evidence. If upon another trial the evidence raises the issue, the court should give the charges requested.

The questions raised by argument of the state’s counsel will probably not again occur and will not be discussed.

The judgment is reversed and the cause remanded.

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MORRISON, Presiding Judge.

The offense is sale of marijuana; the punishment, thirteen years.

We will discuss the evidence in the light most favorable to the state. Agent Bob Richards of the Narcotics Division of the Texas Department of Public Safety testified that in June, 1956, [120]*120while working undercover in the city of Dallas, he caused himself to be placed in jail where he got to know certain inmates there present; that upon his release he made his way to an establishment known as the House of Barbecue, and there became acquainted with the appellant who was there employed; that after a lengthy conversation the appellant offered to sell, and he agreed to buy, one pound of marijuana for the price of $50.00; that, since the appellant did not have the marijuana available and since Richards did not have the entire $50.00 on his person, it was agreed that Richards should return the following day and receive the marijuana; but that before they parted he paid the appellant $10.00 of the agreed purchase price and that he did not thereafter see appellant. Richards testified further that he returned to the House of Barbecue the following morning and was approached by one Don Robson, the appellant not being present, who told him that the “stuff” was ready; that he paid Robson $40.00 and received instructions as to where he might find the marijuana cached. Richards followed Robson’s instructions and found the sack which was stipulated to contain marijuana. At no time in Richards’ conversation with Robson was the appellant’s name ever mentioned nor had the appellant mentioned the name of Robson in his conversation with Richards.

The state has urged the very novel contention that the “sale” of the narcotic drug for which appellant was convicted took place on Richards’ first visit to the barbecue establishment and was a complete transaction when appellant offered to sell to Richards one pound of marijuana which he did not have available. If this was a transaction for which the appellant was convicted, then this case must be reversed because of admission in evidence of the hearsay testimony concerning' the later transaction between Robson and Richards. Roebuck v. State, 85 Texas Cr. Rep. 524, 213 S.W. 656; Anderson v. State, 87 Texas Cr. Rep. 641, 224 S.W. 782; Oakley v. State, 125 Texas Cr. Rep. 258, 68 S.W. 2d 204; and 18 Texas Juris., Sec. 60, p. 123, and cases there cited. If the conviction was for that transaction, the evidence concerning the transaction between Robson and Richards was hearsay because it was had outside of the presence of the appellant and, under this record, no connection is shown between appellant and Robson. The record does not show that appellant and Robson even knew each other or were ever seen together. It is shown that the appellant was employed at the' House of Barbecue, but no such showing is made as to Robson. The most the evidence shows is that two different men on separate days and not in company with each other and at different times talked to a state’s witness in a public place about the sale [121]*121of marijuana. If the conviction was had for the first transaction between appellant and Richards, the testimony about the transaction between Richards and Robson was clearly hearsay as to appellant.

If the conviction was based wholly or in part upon the transaction between Robson and Richards, it must be upon the theory that appellant was co-principal with Robson in the sale of marijuana by Robson to Richards.

There is not in this record in even the remotest degree any evidence which establishes or tends to establish that the appellant was a co-principal with Robson as “principal” is defined in Article 65 of the Penal Code and in the four succeeding1 articles which specify the different situations in which one may become a principal or accomplice in crime. It might here be remarked that the appellant was convicted as a principal offender and was not charged with being an accomplice.

If, as a matter of law, a sale occurred when Richards talked to Robson and took delivery of the marijuana, then the trial court was clearly in error in failing to charge on the law of principals and the law of circumstantial evidence. If upon another trial the evidence raises the issue, the court should give the charges requested.

The questions raised by argument of the state’s counsel will probably not again occur and will not be discussed.

The judgment is reversed and the cause remanded.

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318 S.W.2d 900, 167 Tex. Crim. 119, 1958 Tex. Crim. App. LEXIS 3524, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sherrad-v-state-texcrimapp-1958.

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