One count of the indictment charged appellant with theft of property from Viles, and the other with receiving stolen property from some party to the grand jurors unknown. These transactions are alleged to have been committed on the 25th of October, 1916. The conviction was for receiving stolen property.
The testimony for the State is to the effect that a small quantity of the goods claimed to have been taken out of Viles' store when burglarized was subsequently found in appellant's second-hand store in Wichita Falls. The goods were found in possession of appellant between the first and middle of January. Viles lost a great many goods, under his testimony, but very few were found in possession of appellant which Viles identified. There were a number of other burglaries committed in different localities of the State from about the 12th of July to the 25th of October, in Wise, Childress, Knox and Wichita Counties. There seems to be no claim that appellant had anything to do with any of these. The allegation is that he received stolen goods from some party to the grand jurors unknown. There were various objections to the testimony with reference to the other burglaries covering the specified time from the 12th of July to the 25th of October. The goods from some of the stores were not traced to appellant's possession; that is, he was never found in personal possession of those goods. The State undertook to show by Levine, who was found with most of the stolen goods long after his dissolution of partnership with appellant in another county, that he got said goods from appellant in November. Some of these Levine had sold in Dallas, some in Fort Worth, and some he carried to Paris and other places. Levine claims at the dissolution of their partnership he purchased these goods and carried them away from Wichita Falls to Paris, in Lamar County, and thence to various places and sold them. If appellant knew the goods were stolen or had any connection with them in any way, it is by the testimony of Levine. Appellant claims to have bought the goods found in his possession and without the knowledge or notice of the theft. This was in direct conflict with the theory of the State, and having put it before the jury, it was necessary for the State to show this theory of purchase false. This might be done by positive or circumstantial evidence. If appellant bought the goods in good faith, there was no case against him. If he bought the goods with the knowledge of their theft, the purchase would be no defense. Fraud must exist at the time of receiving the goods. Many of the cases are found collated in Mr. Branch's Annotated Penal Code, pages 1365, 1366, 1367. Levine testified in behalf of the State that appellant purchased the goods. He states, among other things: "It was a long time ago that I first saw these goods in Wool's possession or in the store. I first saw them there after Viles' store was burglarized, about three or four months after that; yes, about four months after the store was burglarized. . . . About these goods, Wool told
me that he bought a bankrupt stock, that a fellow, two fellows from Oklahoma, one he told me came about three weeks before; he asked me about buying a bankrupt stock; he could buy a bankrupt stock and sell it cheap; that fellow came over and asked him about three weeks before. . . . I do not know what month these goods first came to the store; it was a log time ago, two or three or six months, I don't know. . . . Yes, all of these goods here were brought to our store, while I was in partnership with Wool. Yes, Wool and I were both working together when these goods were brought into our store. I did not buy these goods, Wool bought them; two fellows came there before that and wanted to sell a bankrupt stock. I do not know who they were either, these fellows that come to sell the bankrupt stock; I did not ask their names. I do not know how long these goods were in our store there before Wool bought me out. But I think that this $2000 worth of goods here, that I got from Wool when he bought me out, — they had been in our store there about four months at the time that Wool bought me out. Wool bought me out some two months before Christmas. But these goods that I got from Wool, these goods here, had been in our store something like six months before Christmas. . . . As to how long it was before I left here that I saw this tall dressed up man, or before I sold out to Wool that I saw him, will say that I did not see him. I did not see any tall dressed up man. I saw one about three weeks before; he came to make arrangements; he wanted to sell some stock, and Wool said he was going to let it go, and then the man came back and Wool made a deal with him."
The purchase theory in good faith called for a charge, as well as an acquittal unless shown false. Stanfield v. State,73 Tex. Crim. 290; Grande v. State, 37 Tex.Crim. Rep.; Branch's Ann. P.C., p. 1368. As a matter of course, there must be knowledge of the fact the goods were stolen at the time of the reception. Branch's Ann. P.C., p. 1367, for cases.
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One count of the indictment charged appellant with theft of property from Viles, and the other with receiving stolen property from some party to the grand jurors unknown. These transactions are alleged to have been committed on the 25th of October, 1916. The conviction was for receiving stolen property.
The testimony for the State is to the effect that a small quantity of the goods claimed to have been taken out of Viles' store when burglarized was subsequently found in appellant's second-hand store in Wichita Falls. The goods were found in possession of appellant between the first and middle of January. Viles lost a great many goods, under his testimony, but very few were found in possession of appellant which Viles identified. There were a number of other burglaries committed in different localities of the State from about the 12th of July to the 25th of October, in Wise, Childress, Knox and Wichita Counties. There seems to be no claim that appellant had anything to do with any of these. The allegation is that he received stolen goods from some party to the grand jurors unknown. There were various objections to the testimony with reference to the other burglaries covering the specified time from the 12th of July to the 25th of October. The goods from some of the stores were not traced to appellant's possession; that is, he was never found in personal possession of those goods. The State undertook to show by Levine, who was found with most of the stolen goods long after his dissolution of partnership with appellant in another county, that he got said goods from appellant in November. Some of these Levine had sold in Dallas, some in Fort Worth, and some he carried to Paris and other places. Levine claims at the dissolution of their partnership he purchased these goods and carried them away from Wichita Falls to Paris, in Lamar County, and thence to various places and sold them. If appellant knew the goods were stolen or had any connection with them in any way, it is by the testimony of Levine. Appellant claims to have bought the goods found in his possession and without the knowledge or notice of the theft. This was in direct conflict with the theory of the State, and having put it before the jury, it was necessary for the State to show this theory of purchase false. This might be done by positive or circumstantial evidence. If appellant bought the goods in good faith, there was no case against him. If he bought the goods with the knowledge of their theft, the purchase would be no defense. Fraud must exist at the time of receiving the goods. Many of the cases are found collated in Mr. Branch's Annotated Penal Code, pages 1365, 1366, 1367. Levine testified in behalf of the State that appellant purchased the goods. He states, among other things: "It was a long time ago that I first saw these goods in Wool's possession or in the store. I first saw them there after Viles' store was burglarized, about three or four months after that; yes, about four months after the store was burglarized. . . . About these goods, Wool told
me that he bought a bankrupt stock, that a fellow, two fellows from Oklahoma, one he told me came about three weeks before; he asked me about buying a bankrupt stock; he could buy a bankrupt stock and sell it cheap; that fellow came over and asked him about three weeks before. . . . I do not know what month these goods first came to the store; it was a log time ago, two or three or six months, I don't know. . . . Yes, all of these goods here were brought to our store, while I was in partnership with Wool. Yes, Wool and I were both working together when these goods were brought into our store. I did not buy these goods, Wool bought them; two fellows came there before that and wanted to sell a bankrupt stock. I do not know who they were either, these fellows that come to sell the bankrupt stock; I did not ask their names. I do not know how long these goods were in our store there before Wool bought me out. But I think that this $2000 worth of goods here, that I got from Wool when he bought me out, — they had been in our store there about four months at the time that Wool bought me out. Wool bought me out some two months before Christmas. But these goods that I got from Wool, these goods here, had been in our store something like six months before Christmas. . . . As to how long it was before I left here that I saw this tall dressed up man, or before I sold out to Wool that I saw him, will say that I did not see him. I did not see any tall dressed up man. I saw one about three weeks before; he came to make arrangements; he wanted to sell some stock, and Wool said he was going to let it go, and then the man came back and Wool made a deal with him."
The purchase theory in good faith called for a charge, as well as an acquittal unless shown false. Stanfield v. State,73 Tex. Crim. 290; Grande v. State, 37 Tex.Crim. Rep.; Branch's Ann. P.C., p. 1368. As a matter of course, there must be knowledge of the fact the goods were stolen at the time of the reception. Branch's Ann. P.C., p. 1367, for cases.
There is a bill of exceptions reserved to the testimony of the sheriff of Childress County as to statements of a party named McCall, whom he had arrested for the burglary of Galbraith's store in August, 1916. At the time of the first arrest he found some of the goods from Galbraith's store in McCall's possession. McCall was placed in jail in Wichita Falls and escaped. Later he was arrested in Nolan County. In December, 1916, while a prisoner at Sweetwater, McCall and the sheriff of Childress County had a conversation in which McCall made statements to the effect that he had committed various and sundry burglaries in divers places, and that "some Jews in Wichita Falls handled" the goods for him. Pursuant to McCall's statement the sheriff of Childress County and others found some of the indicated goods in possession of appellant in Wichita Falls. The conversation occurred on December 26th. This officer testified that in pursuance to McCall's statement, about January 6th he found some of the goods in appellant's store. It
seems the only goods found in appellant's store were taken from the stores of Viles and Galbraith. None of the goods, so far as the record discloses, as the writer recalls, taken from the other burglarized stores were in appellant's possession. Appellant was not present at the time the conversation occurred and knew nothing about it. Other evidence was admitted that McCall, in another county, committed a theft, and perhaps a burglary in connection with it, of 2500 skunk skins. It was not sought to connect appellant with this transaction so far as the writer can ascertain from the record. It was also testified, over objection, that McCall was the most notorious burglar and expert in that line of crookedness in that section of the country. Various and sundry objections were urged to this testimony, which should have been sustained. All the authorities, so far as the writer is aware, reject statements of this character. These cases will be found collated in Mr. Branch's Ann. P.C., p. 1366. In Richardson v. State, 75 S.W. Rep., 505, it was held that it was error to admit proof of the declarations of the thief made in the absence of the defendant to the effect that defendant had agreed to receive the property. The sheriff of Childress County testified that McCall stated to him that he had arranged with these Jews to receive stolen property. McCall was a third party, not included in this record or in any way connected with it by any allegation. The indictment alleged that the property was received from someone to the grand jurors unknown. This was hearsay evidence occurring between the sheriff of Childress County and McCall. If appellant received the goods from McCall, the indictment should have so alleged. The grand jury had full knowledge of that fact when the indictment was found February 23, 1917. This conversation occurred on December 26, 1916. Some of the goods, under the sheriff's testimony, from Galbraith and Viles' stores were found in appellant's possession about the 6th or 8th of January, 1917. The grand jury knew or could have known by any sort of diligence the same facts to which the sheriff of Childress County testified. If McCall had been the party in the indictment mentioned from whom appellant received the goods, his confession might be admissible, not against appellant, but against McCall. Again, it is the uniform rule that the name of the party from whom stolen goods are received should be stated in the pleading. If that is not possible, then the grand jurors may allege the name to be unknown. In State v. Perkins, 45 Tex. 10, Judge Moore, who delivered the opinion, uses this language: "The person from whom they were received must also be alleged in the indictment." Quite a number of these cases are collated by Mr. Branch's Ann. P.C., p. 1367. He thus states the rule: "If the evidence makes it apparent that the grand jury knew or could have ascertained by the use of reasonable diligence the name of the party from whom the property was received, a conviction will not be sustained if the allegation is that such person was unknown. McKay v. State, 49 Tex.Crim. Rep., 90 S.W. Rep., 653;
Williams v. State, 69 Tex.Crim. Rep., 153 S.W. Rep., 1136." The same rule was laid down in Yantis v. State, 144 S.W. Rep., 847. It is sufficiently clear and plain that the grand jury had full knowledge of McCall's statement when the indictment was found. They doubtless indicted McCall for the burglaries indicated by him. Now if McCall had been included in the indictment as the party from whom appellant received the stolen goods, his confession could be used against him connecting him with the matter as the thief, but not against appellant. The authorities seem to settle this proposition. Tucker v. State, 23 Texas Crim. App., 512; Cooper v. State, 29 Texas Crim. App., 8; Goldstein v. State, 75 Tex.Crim. Rep., and Meek v. State, 71 Tex.Crim. Rep.. In these cases the indictment alleged the name of the parties from whom the property was received, and having done so, the confession of the thief was admitted against him. A quotation from the Tucker case is as follows:
"Upon the trial the court permitted the State, over defendant's objection, to prove by one Thedford that he met Noon Tucker driving said yearling to deliver the same to Bachelor, to whom the same had been sold by defendant; that Thedford asked Noon Tucker `if that (meaning said yearling) was one he had mavericked?' that said Tucker at first made an evasive answer to said question, but afterwards said it was one they had raised. This testimony was, we think, unquestionably competent as bearing upon the issue of the guilt of Noon Tucker of the theft of the yearling. It was essential for the State to prove that Noon Tucker had committed a theft of the yearling in order to establish the charge against the defendant contained in the second count of the indictment."
In the Mooney case, 76 Tex.Crim. Rep., the opinion states that the indictment having made certain allegations, it was necessary for the proof to meet the allegations. The quotation is as follows: "The indictment alleged appellant received said cattle `from a person to the grand jurors unknown.' It was proper, if not necessary, that this should be proven." The State, as the writer understands this record, did not undertake to show that the property was received from a party to the grand jurors unknown, or use any diligence to ascertain the name. It is only where the same is not known and can not be ascertained by reasonable diligence that the allegation of an unknown owner or party is permitted. The testimony, therefore, from every viewpoint, of the sheriff as to statements of McCall was inadmissible. It did show, however, that the allegation of reception of the goods from an unknown party was not authorized Cases already cited. Branch's Ann. P.C., p. 1367.
Objection was also urged to the testimony of the witness Chenault. Levine testified that he and appellant had been partners in a secondhand business, and without going into details with reference to those matters, he states that about two months before Christmas they dissolved
partnership on not very friendly terms; that he took his goods and moved to Paris and went into business. Nearly all of the goods that were taken from these burglarized stores were found either in his possession or in places where he had disposed of them. A great quantity of these goods were found in pursuance of his statement at Fort Worth and Dallas and taken back to Wichita Falls, and were in court at the time of the trial of appellant. While in Paris, where he set up his store, he had conversations with Chenault. These conversations, acts and declarations were admitted through Chenault. Appellant was in Wichita Falls. These towns were some distance, practically one hundred miles, apart. We deem it unnecessary to state the conversations; they are voluminous and the bills lengthy. These matters were not admissible. They were declarations of Levine long after the conspiracy, if there was one, between him and appellant. The acts and declarations of a co-conspirator can not be introduced except as against himself after the termination of the conspiracy or the purpose involved in their agreement. This is so well settled we deem it unnecessary even to cite authorities. They were, furthermore, conversations, acts and declarations between third parties in the absence of defendant, and could not possibly be binding upon or used against him.
The writer is of the opinion that those extraneous burglaries were inadmissible against appellant, except those in which he had been in possession of the goods.
There is another matter that might be mentioned in connection with the purchase theory before closing this opinion. There was testimony by the State that appellant purchased these goods. The jury should have been instructed that he was entitled to the benefit of his purchase theory, and should have been instructed that if there was a reasonable doubt of this matter he should have had the benefit of that doubt in the charge. The jury should also have been instructed that where the State puts in exculpatory statements, the statement will be taken as true, and the State must prove same to be untrue. Unless the State proves same false, appellant would be entitled to an acquittal. The authorities will be found collated in Mr. Branch's Ann. P.C., pp. 1365 to 1367, inclusive.
The judgment will be reversed and the cause remanded.
Reversed and remanded.