Talmadge v. State

MORROW, Presiding Judge. —Conviction is for theft; punishment fixed at confinement in the penitentiary for a period of two years. The property taken was oil well casing. It was situated near the village of Caddo at a well known as Cary No. 2, and Osterman was the owner. Appellant engaged the owners of a number of trucks to haul the property. One of the persons so engaged informed the sheriff of the enterprise and he disguised himself as a laborer and aceompained the party upon one of the trucks, .and after the possession of the property was obtained, he arrested the appellant. Appellant testified and claimed that his design was not to steal the pipe but that his connection with it was by virtue of an agreement with a man named Watson, who claimed to have purchased the pipe from a man named Spleen; that Watson had requested him to hire the trucks and have the property removed, and agreed to pay him the sum of $1,000 for the transportation, this being $300 in excess of the price which the owners of the trucks charged for transporting the pipe. Osterman testified, and the facts showed, that the property was under his care, control and management. The fact that he also testified to the conclusion that he was in possession of it was not important nor harmful. The facts showing ownership and possession were amply proved without regard to his statement that he was in possession. The fact the use of the word “possession” in connection with his other testimony is but a shorthand rendition of the facts. At all events, the possession was not a controverted issue. The state’s testimony, as stated above, aside from this conclusion, was ample to establish it. In negotiating with the owners of the trucks, one of the witnesses testified that appellant described the/ property as “hot stuff.” In his testimony appellant declared that stolen pipe was at times referred to as “hot pipe” and sometimes as “wet pipe.” We think the complaint of the admission of the testimony that in making arrangements to *179 haul it appellant described it as “hot stuff” is not a matter calling for a reversal of the cause. The state’s witness Lockhart failed to recall a conversation with the appellant. A bill of exceptions complains of the conduct of the state touching the statement of Lockhart before the grand jury. The bill is qualified thus: “The district attorney claimed surprise at the testimony of the witness Joe D. Lockhart failing to remember a conversation had with the defendant prior to the theft, and asked the witness if he had not testified before the grand jury and the witnefss answering in the affirmative, the district attorney then showed him his statement made before the grand jury which had been reduced to writing and signed by the witness, and the witness after reading the same testified to the conversation with the defendant which the district attorney had undertaken to prove by him in the first instance. The grand jury statement was not read to the jury, and was not offered nor admitted in evidence.” Thus explained, the bill shows no error.' The writing was available to refresh the memory of the witness. Thus explained, the/ bill shows no error. The writing was available to refresh the memory of the witness. An application or a continuance was made on account of the witness Stout, by whom the appellant expected to prove his contract with Watson to haul the pipe and that upon learning of appellant’s arrest, Watson had fled the country. Stout was a resident of the county, and the trial took place about a month after the indictment was returned. No process was served on Stout and none issue/d for him until three days before the trial. In the application, there was an averment that a few days before the trial began he (Stout) had promised to be present and that he was temporarily in Comanche County, though his exact whereabouts was unknown. The motion for new trial was overruled something over a week after the trial. Neither in the application nor in the motion for new trial was there any sufficient reason gvien for the failure to cause the subpoena to be issued at an earlier date or to attach his affidavit to the motion for new trial. We think the diligence is insufficient. Aside from that fact, the record does not, in our judgment, indicate that the trial court abused its discretion in overruling the application. Appellant’s connection with the taking of the property was conceded, and there were many circumstances revealed by the evidence pointing to his knowledge that the taking was illegal. The expedition was undertaken at night. The trucks were separated and reassembled near the stolen property at a certain point designated by the appellant. There was evidence that as they approached, upon appellant’s suggestion, the noise was suppressed and the lights were extinguished. *180 The testimony with reference to the entity of Watson described by the appellant was not of so impressive a character as to indicate that the trial judge was wrong in concluding that the absent testimony of Stout would have probably produced a different result. The failure to produce Spleen, from whom appellant claims that Watson bought the property is unexplained. Appellant advances the position that the witnesses against him were accomplices. We think they were not so as a matter of law. Wright v. State, 7 Texas Crim. App. 574; Allison v. State, 14 Texas Crim. App. 122; Smith v. State, 89 Texas Crim. Rep. 145; and eases listed. There was no request made to have the jury determine their status. In the absence of such request, the witnesses not being accomplices as a matter of law, their testimony will support the verdict. McElroy v. State, 53 Texas Crim. Rep. 59; Huggins v. State, 85 Texas Crim. Rep. 205. The judgment is affirmed. ■ Affirmed.