Zweig v. State

171 S.W. 747, 74 Tex. Crim. 306, 1913 Tex. Crim. App. LEXIS 696

• Court: Court of Criminal Appeals of Texas
• Decided: April 30, 1913
• Docket: No. 2080.
• Status: Published

Opinions

HARPER, Judge.

Appellant was prosecuted under an indictment charging, first, that appellant was guilty of theft in the State of Missouri and brought the stolen property into this State. This count was not submitted to the jury. The second count, which was submitted and under which he was convicted, omitting formal parts, charges: That appellant on or about the 31st day of October, A. D. 1910, in the county of St. Louis, State of Missouri, and anterior to the presentment of this indictment did unlawfully and fraudulently receive from Lefty Linnaman and other parties, to the grand jury unknown, certain corporeal personal property (here follows a description of the property, and its value); the same then and there “being the property of and belonging to the Sanders Duck '& Rubber Company, a corporation duly incorporated under the laws of Missouri, and which said property had theretofore been acquired by the said Lefty Linnaman and other parties, to the grand jurors unknown, in' such manner as that the acquisition of the same comes within the meaning of the term Theft’; the said Louis Zweig then and there well knowing the same to have been so acquired at the time he received the same as aforesaid, and which said acts by the said Louis Zweig were, by the laws of the State of Missouri, then and there in force, the offense of receiving stolen property; and which acts, if the same had been committed in the State of Texas, would, under the laws of the said State of Texas then and there in force, have been the offense of receiving stolen property; and the said Louis Zweig did afterwards unlawfully, viz: on or about the twenty-first day of November, A. D. 1910, bring the aforesaid property into the State of Texas and into the county of Milam.” We have copied the indictment because many of the contentions of appellant are based thereon..

The first complaint is that the count in the indictment is insufficient because it fails to allege the date that Lefty Linnaman and others committed the theft. While appellant says in his brief he has been unable to find any authorities on this question, yet, he earnestly insists that it is essential that the date of the original theft shall be stated. By reading the indictment it is seen that appellant is prosecuted for receiving stolen property, knowing that it had been stolen and bringing it into this State. Whether or not it is necessary in an indictment charging one with receiving stolen property, to allege the date of the original theft, is no new question in this State. When the Supreme Court had jurisdiction in criminal matters this question was before them in the case of Perkins v. State, 45 Texas, 10, and they held that it was unnecessary to allege "the time and place of the original taking,” citing Bishop’s Crim. Proc., sec. 928. And since the creation of this court, in the case of Brothers v. State, this question is again decided adversély to appellant’s contention, this court saying:

“Is it essential to the validity of a charge for receiving stolen property that the count shall contain a direct, distinct and affirmative allegation of all.the facts going to constitute theft against the original taker from whom it has been received? The pleader, it will be noted, has followed substantially Form No. 512, prescribed for receiving stolen property, in ■ Willson’s Criminal Forms, page 220 (now sec. 1524, White’s Ann. Code). Under the great weight of authority, the form is unquestionably sufficient. (See Whart., Precedents and Indictments, 4 ed., No. 450; 2 Archbold’s Crim. Practice and Pleading, 8 ed., top p. 1425, side p. 474.)

“Speaking of the offense of receiving stolen property, Mr. Bishop says of the indictment: ‘As in larceny so in receiving, the transaction is identified by the description of the stolen things and their ownership. The thing stolen must be described in the same manner as in larceny. The name of the thief is not identifying matter, and hence it need not be alleged. The owner’s name is essential to identification; hence it must be stated if known. Commonly in England and in numbers of our States, the indictment does not aver from whom the stolen goods were received. Some of our American cases require it.’ (2 Bish. Crim. Prac., 3 ed., secs. 982, 983; and to the same effect see 1 Whart. Crim. Law, 8 ed., sec. 997.) In Texas it has been the rule that an indictment for receiving stolen property must allege-the name of the owner of the property, if known, and the name of the person from whom received. (State v. Perkins, 45 Texas, 10.) Judge Willson’s form is sustained by all standard authorities, and the count here complained of is in compliance with said form. It was not error to overrule the motion to quash. (Nourse v. The State, 2 Texas Crim. App., 304.)” In these and cases cited in them will he found a discussion of all questions raised by appellant in his motion to quash, and which decide all of them adversely to him.

A serious question in the case is that the State, having alleged that appellant received the stolen property “in the County of St. Louis,” that the proof must show that he received the property in that county. Is this an essential allegation in the indictment? As applicable to this case, article 951 of the Code reads: “If any person having received stolen property in any other State^ knowing the same to have been stolen, shall bring into this State any property so acquired or received, he shall be deemed guilty of receiving stolen property, and shall be punished as if "the offense had been committed in this State.” Are the words in the “County of St. Louis,” not being an element of the offense (for it was wholly unnecessary to allege in what county in Missouri the property was received as held by all the authorities) in anyway descriptive of the identity of what is, legally "essential to the charge contained in the indictment? In the case "of Mayo v. The State," 7 Texas Crim. App., 342, the question of what is descriptive of the offense and what may be treated as a surplus allegation, is discussed at length and the rule is said to be: “A rule almost fundamental is that no allegation, whether it be necessary or unnecessary, or more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment, can be rejected as surplusage. 1 Bishop’s Cr. Proc., sec. 485; Warrington v. The State, 1 Texas Crim. App., 168. But allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded. United States v. Howard, 3 Sumn., 12. And where an indictment contains matter unnecessary to a description of the offense, it may be rejected. The State v. Coppenburg, 2 Strobh., 273. Again, if, eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code. Coleman v. The State, 2 Texas Crim. App.,' 512; Burke v. The State, 5 Texas Crim. App., 74. A variance in the name in an indictment will not he fatal if the name he immaterial to constitute the offense and may he rejected as surplusage. 2 East P. C., 593; Boscoe’s Cr. Ev., 82.” Tested by this rule, the words “County of St. Louis” may be rejected as surplusage, and still all the elements would be charged and the indictment would be so definite that appellant could successfully plead it in bar of any subsequent prosecution for this offense. In the case of Clark v. State, 41 Texas Crim. Bep., 641, Presiding Judge Davidson aptly states the correct rule:

“This is a well settled principle of criminal pleading: If, eliminating surplusage, the indictment so avers the constituent elements of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance, under our Code, and therefore sufficiently charges the offense. McConnell v. State, 22 Texas Crim. App., 354; Coleman v. State, 2 Texas Crim. App., 512; Burke v. State, 5 Texas Crim. App., 74; Mayo v. State, 7 Texas Crim. App., 342; Holden v. State, 18 Texas Crim. App., 91; Cudd v. State, 28 Texas Crim. App., 124; Hammons v. State, 29 Texas Crim. App., 445; Taylor v. State, 29 Texas Crim. App., 466; Lomax v. State, 38 Texas Crim. Rep., 318.” Numerous other cases might he cited hut we do not deem it necessary to do so. If it was essential to allege that the property was received in any certain county in a State, or if the allegation was descriptive of any essential allegation in the indictment, the authorities cited by appellant would be in point, but as it was wholly unnecessary under our Code to allege in' what county the property was received, and where the words are used, they are not descriptive of what is legally essential to state in the indictment, and further, when these words are omitted, the indictment specifically charges an'offense under our Code and in language that it could be plead in bar of any other prosecution for that offense, we hold that the trial judge did not err in treating these words as mere surplusage. Entertaining this view it is unnecessary to discuss or determine whether or not the City of St. Louis is or is not in fact a part and parcel of the County of St. Louis, nor the many questions raised by objecting to testimony in regard thereto, nor the special charges asked in relation solely to that question. The gist of the offense in this character of case is the bringing of the stolen property into this State, and it was not essential to allege in what county it was received, and if we should be mistaken in the holding that it was not a “descriptive averment” necessary to be proven, and it should be held to be such a descriptive averment as it must be proven as alleged, then an allegation of that character may be proven by facts which would show that it was generally so spoken of and understood. If it be conceded that the laws of the State of Missouri, introduced in evidence, show that the City of St. Louis is a separate and distinct municipality from the County of St. Louis, yet the same evidence shows that the City of St. Louis is wholly surrounded by the County of St. Louis, and if we are to give credence to the testimony adduced on the trial, it has always been spoken of and considered a part of the County of St. Louis. While it may be said that the laws of the State of Missouri give to the city an independent political existence, yet these same laws show that the City of St. Louis is wholly within the territorial bounds of the County of St. Louis, it being carved out of that county, and the limits of the county entirely surround the City of St. Louis. It is by the record shown that in the City of St. Louis it is generally spoken of and described as within the County of St. Louis. By all the testimony it is shown that the goods were stolen in the City of St. Louis, and Mr. Sanders testified: “Those goods were taken from me in the County of St. Louis and State of Missouri.without my consent.” Frank McKenna testified that the City of St. Louis was within the bounds of ,the County of St. Louis, and was always spoken of as being within that county. In fact, outside of the bare fact that laws of the State had carved out a part of the County of St. Louis and had given it to some extent at least a separate and independent political existence, the record would disclose that it is always spoken of and generally understood to be within the County of St. Louis. And if it should he held that having stated the goods were stolen from Sanders Duck & Rubber Company in the County of St. Louis it became a descriptive averment and must be proven as alleged, then it has always been the rule in this State that a descriptive averment of this character may be sustained by proof that it is usually so spoken of and understood. Dignowitty v. State, 17 Texas, 521, and cases cited in Roman v. State, 64 Texas Crim. Rep., 515, 142 S. W. Rep., 912. In Mr. Underhill’s work on Criminal Evidence, the rule is said to be: “The strict technical rules formerly governing this subject have been greatly relaxed, if not altogether abrogated, by statutory enactment or by the liberal spirit of the modern courts of criminal jurisdiction. In determining whether a variance is material, the question to be decided is, does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense?”

In this case it can be positively said that appellant could not have been misled in making his defense, and he would certainly be able to plead this prosecution in bar of any subsequent prosecution for the offense. So if we are mistaken in holding that the words “County of St. Louis” was not necessary to be alleged to constitute the offense, and could and should be treated as surplusage, then we think such an allegation as can be proven by evidence that it was so called, termed and spoken of, and in either event the court did not err in the premises.

Appellant next complains of the action of the court in overruling his application for a severance, neither the application nor the hill reserved makes it manifest that Henry Zweig had ever been arrested; or that he was willing to be first tried; nor was it shown whether Henry Zweig had been indicted as an accomplice, principal or accessory to the offense, nor that granting same would not have resulted in a continuance. If he was indicted as an accessory to the offense, this court has held that under the law he could not be first tried. In Williams v. State, 27 Texas Crim. App., 471, we held: " “It ivas not error to refuse the defendant’s motion to put John West upon trial before trying the defendant. Said West was indicted as an accessory to the theft charged against the defendant, and it is expressly provided that where ‘the principal is arrested he shall be first tried.’ (Penal Code, art. 90.) The defendant being the principal, and under arrest, it was not only proper but obligatory upon the court to try him first. This requirement of the statute is special and controls the general provision relating to the severance on trial of defendants. (Code Crim. Proc., art. 669a.)” As said by this court in Edgar v. State, 59 Texas Crim. Rep., 252, on appeal the legal presumption is that the court ruled correctly, and to have the matter revised by us on appeal the bill must state matters which would show the error in the ruling of the court. If Henry Zweig was under arrest, and willing to be tried, and to have granted the application would not have worked a continuance, and the indictment against him did not charge him with being an accessory, these facts should have been shown, in order to avail appellant of this ground in the motion for new trial. For correct rule in regard to these matters see Ortiz v. State, 151 S. W. Rep., 1058, and cases there cited.

There was no error in the court refusing to make the State elect under which count in the indictment it would ask for a conviction at the close of the testimony offered in behalf of the State. In section 300 of Branch’s Criminal Law he correctly states the rule to be: “If only one transaction is charged, and different counts are contained in the indictment to meet the possible phases the testimony may assume, the State will not be required to elect,” citing Goode v. The State, 57 Texas Grim. Rep., 220, and numerous other cases which will be found noted in that section.

In bill of exception No. 1 it is shown that appellant objected to the witness H. A. Sanders testifying that the Sanders Duck & Rubber Company was a corporation. As no effort was made to -show for what purposes the company was incorporated, but merely the fact that it was an incorporated company, the court did not err in the matter. This was a fact that the witness personally knew.

In bill No. 9 is set out the testimony of this witness almost in full, covering some twelve pages of the record, at the conclusion it being stated that the objections were -that the witness was “incompetent to testify as to the identity of the goods alleged to have been obtained as shown by his testimony.” Mr. Sanders testified that he was able to identify the goods found, as the goods stolen from him, and while appellant might contend that his cross-examination weakened that statement, yet this would go to the credit of the witness and not the admissibility of the testimony. As stated in Ortiz v. The State, 68 Texas Crim. Rep., 608, 151 S. W. Rep., 1056, “a bill of exceptions is too general for consideration if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection pointing out specifically the supposed objectionable portions of the evidence,” citing Branch’s Criminal Law, section 47, and numerous authorities. And the same might be said as to the testimony of M. Bourlandt, which covers some eight pages of the record, and at the last the objection being stated, “for the reason that the testimony in reference to statements made by Henry Zweig, not in the presence of defendant were not admissible against appellant.” However, we will state that the record disclosed that appellant, Henry 'Zweig, and Bourlandt were in business as partners at Cameron, Milam County; that if the State’s theory is correct, appellant was in St. Louis and shipped the alleged stolen goods from St. Louis to an address in Taylor, Texas; at the suggestion of Henry Zweig, Bourlandt went to Taylor, paid the freight and reshipped the goods to Zweig & Bourlandt at Cameron; that the goods were there received, and by Henry Zweig and Bourlandt, and when they learned that they were likely to be caught in possession of the goods- they sought to conceal them. That appellant then came to Cameron and reshipped the goods to another point, where they were finally discovered and identified as the stolen goods by Mr. Sanders. The statement of all the conspirators during the pending of the conspiracy is always admissible in evidence, and as it is shown that the conspiracy to convert these goods to the use of appellant, Henry Zweig, ánd Bourlandt was not completed; and when it was learned that the theft was about to be discovered, it was sought to conceal the goods, the statements of each and all the conspirators were admissible, and the court did not err in admitting the statements of Henry Zweig which he did admit. In Branch on Grim. Law, sec. 240, it is said:

“Acts and declarations of one conspirator in furtherance of the common design are admissible against another conspirator pending the conspiracy and until its final termination. This proposition includes anything that was within the contemplation of the conspiracy, such' as dividing the spoils, or any of those matters that may be subsequent to, but included in the scope of the conspiracy. O’Neal v. State, 14 Texas Crim. App., 582; Rix v. State, 33 Texas Crim. Rep., 353, 26 S. W. Rep., 505; Franks v. State, 36 Texas Crim. Rep., 149, 35 S. W. Rep., 977; Small v. State, 40 S. W. Rep., 790; Long v. State, 55 Texas Crim. Rep., 55, 114 S. W. Rep., 632; Gracy v. State, 57 Texas Crim. Rep., 68, 121 S. W. Rep., 706; Milo v. State, 59 Texas Crim. Rep., 196, 127 S. W. Rep., 1025; Kipper v. State, 45 Texas Crim. Rep., 377, 77 S. W. Rep., 611; Holt v. State, 39 Texas Crim. Rep., 282, 46 S. W. Rep., 829; Eggleston v. State, 59 Texas Crim. Rep., 542, 128 S. W. Rep., 1105.

“What is said and done by any of the conspirators, pending the conspiracy and in furtherance of the common design, is admissible against the one on trial, though said and done in his absence. Wallace v. State, 46 Texas Crim. Rep., 341, 81 S. W. Rep., 966; Barber v. State, 69 S. W. Rep., 515; Trevinio v. State, 38 Texas Crim. Rep., 64, 41 S. W. Rep., 608; Dobbs v. State, 51 Texas Crim. Rep., 113, 100 S. W. Rep., 946; Reno v. State, 55 Texas Crim. Rep., 260; Smith v. State, 21 Texas Crim. App., 96, 17 S. W. Rep., 560; Armstead v. State, 22 Texas Crim. App., 51, 2 S. W. Rep., 253; Richards v. State, 53 Texas Crim. Rep., 400, 82 S. W. Rep., 520; Williams v. State, 45 Texas Crim. Rep., 240, 75 S. W. Rep., 509; Chapman v. State, 45 Texas Crim. Rep., 479, 76 S. W. Rep., 477; Hannon v. State, 5 Texas Crim. App., 549, 3 Texas Crim. App., 200; Moore v. State, 15 Texas Crim. App., 1; Eggleston v. State, 59 Texas Crim. Rep., 542, 128 S. W. Rep., 1105.”

It was not necessary that appellant himself should ship the goods from Taylor to Cameron. If he was the procuring cause to have the goods shipped from St. Louis to the address at Taylor, and his partners or one of them, at his instance, reshipped the goods from Taylor to Cameron, be would be legally responsible for the act of bringing the goods into Milam County, and the court did not err in refusing special charge Ho. 2 on this phase of the case. Mr. Sanders testified that he was in charge of the corporation and its property. The fact that he employed a drayman to carry them to the depot from which place they were stolen, would not take them out oí his possession. The possession of the drayman, under such circumstances, was temporary, and they remained in Sanders’ possession until delivered to the railway company, and the court did not err in refusing the special charges in regard to such possession.

Special charge No. 7 was covered by the court’s main charge; therefore, it was unnecessary to give it. Under the evidence in 'this case special charge No. 8 was not called for. Appellant apparently proceeds on the theory that the witnesses must be personally before the grand jury. This is not the law. Examining trials are held, and testimony taken, reduced to writing and sworn to, which is transmitted to the grand jury. The grand jury is authorized to return an indictment on this testimony if they deem it sufficient, and the evidence shows the testimony adduced at the examining trial was before the grand jury and considered by them.

It may be said that the evidence relied on by the State to prove that appellant received the goods from the persons named in the indictment is circumstantial. The court gave a full and fair charge on circum-. stantial evidence, and the circumstances would fully authorize the jury to find appellant guilty under the second count in the indictment.. The circumstances would show appellant in possession of these goods in Mayer Katz’s yard, boxing them for shipment; they are shipped from St. Louis, and placed in his store in Cameron, and when he ascertains search is being made for them, he in person ships a portion of them away from Cameron to avoid detection. Lefty Linnaman is placed in such juxtaposition to appellant as authorized a finding that he was the person from whom appellant received the goods.

We have carefully reviewed each bill of exceptions, and ground in the motion for new trial, and are of the opinion that the court properly submitted the case on circumstantial evidence, and the evidence is amply sufficient to support the verdict.

The judgment is affirmed.

Affirmed.

DAVIDSON, Presiding Judge, dissenting.