Wool v. State

201 S.W. 1006, 83 Tex. Crim. 121, 1918 Tex. Crim. App. LEXIS 103

Opinions

MORROW, Judge.

Appellant was convicted of receiving stolen property. This is a companion case to No. 4546 and the facts, while not identical, are so similar as to make, I think, the same principles with reference to introduction of proof of other acts applicable to each.

In this case there is no definite proof as to the identity of the thief. There is evidence, however, that the stolen property taken from several houses burglarized were received by appellant at the same time; that there were previous negotiations with reference to it with unknown parties, and the State relying upon circumstantial evidence to show criminal intent, was, we think, entitled to prove the burglaries with reference to those transactions in which the stolen property was identified in the possession of appellant. Such evidence, I think, however, should be limited to such transactions and not extended to evidence of transactions in which the possession of the stolen property by the witness Mike Levine tended to connect him alone with the particular collateral crime. The statements and transactions of Mike Levine after the termination of his connection with appellant were not admissible against appellant. As they were not made at a time when the evidence discloses that appellant and Levine were acting together, their subsequent acts in the nature of a confession by Levine is not binding upon appellant.

The State’s testimony given by the accomplice, Mike Levine, to the effect that appellant bought the stolen goods is quite confusing and contradictory. He states in one place, “I didn’t know whether it was stolen goods or not.” He claims that appellant told him he bought the goods and I -think the issue of purchase without knowledge of the theft was raised. These facts present a defensive theory, which on request of appellant should have been submitted to the jury. It was not submitted and the appellant 'in a charge couched in appropriate language requested the court to tell the jury that the receipt of the goods by appellant alone was not sufficient to convict, that it must be accompanied by proof that he knew they were stolen. Knowledge of the fact that the goods were stolen is an essential element of the offense and the State’s testimony tending to suggest that they were purchased without guilty knowledge or intent, a charge on the subject should have been given. Cases will be found listed in Branch’s Ann. P. C., pp. 1365-1367.

The judgment of the lower court should be reversed and the cause remanded.

Reversed and remanded.