King v. State

OPINION ON STATE’S MOTION FOR REHEARING

CLINTON, Judge.

A panel of the Court held that, while the evidence was sufficient to sustain the conviction, some of it was the fruit of an illegal search and seizure. The State argues in its *785motion for rehearing that a close examination of the evidence reveals that the evidence was not the fruit of an illegal search and seizure. However, the State’s argument proves too much. Because the State’s analysis of the evidence persuades us that the evidence is insufficient to support the conviction, we need not reconsider the search and seizure question.

Appellant was indicted for theft of thirty antique pistols. He moved to suppress evidence, but the motion was overruled. Upon pleading not guilty, appellant waived jury trial and went to trial before the court. The evidence consisted of two written stipulations 1 and the transcription of the court reporter’s notes (plus an exhibit) from an examining trial.

To prove that appellant stole the thirty antique pistols, the State relied on the venerable rule that the accused’s unexplained recent personal possession of stolen property, coupled with an assertion by the accused of a right to the property, may support his conviction for theft of that property. Williams v. State, 621 S.W.2d 613 (Tex.Cr.App.1981); Grant v. State, 566 S.W.2d 954 (Tex.Cr.App.1978). However, for the reasons set out below we are convinced that there was no proof that appellant was “taken with the mainour”2 and no competent evidence that appellant ever possessed the pistols which were the subject of the allegations in the indictment.

The parties stipulated that if one Weldon Johnson were called to testify, he would testify as follows:

“(a) he knows personally the Danny P. King named in this cause;
(b)on Thanksgiving Day 1976 Weldon Johnson came into possession of thirty (30) antique pistols which were actually the property of the Ivan McElroy named in the indictment of this cause;
(c) the pistols were delivered by a person who said they had come from Danny P. King;
(d) Weldon Johnson had heard approximately two weeks before Thanksgiving Day that Danny P. King possessed some antique pistols;
(e) in a conversation with Danny P. King, Weldon Johnson was told by King that if anyone asked about the pistols that Johnson was to say that a person, other than the one who gave the pistols to Johnson, had given them to him;
(f) Weldon Johnson had never seen the pistols in Danny P. King’s possession or in premises under his control.”

As the State itself points out in its motion for rehearing, “There is nothing to indicate that Johnson ever returned them [the pistols] to appellant or that they were located at 4406 Lockhart Highway [appellant’s residence] at the time the search warrant was executed on May 27, 1977, about six months later.” Nothing in the record indicates that Johnson had personal knowledge that appellant possessed the pistols alleged in the indictment.

On May 27,1977, officers obtained a warrant to search appellant’s residence for, and to seize, a certain antique clock, “antique pistols,” and an antique washstand. Officer John Mellon, who was described by the prosecuting attorney as “the custody and control officer,” testified at the examining trial that he, along with twelve or thirteen other officers, went to appellant’s residence on that date with the warrant. They seized not only the items specified in the search warrant but everything in the house except a stove, a refrigerator, and a bedstead and mattress. The property was put on big flatbed city trucks, a process that took all day. Everything that was removed from the premises (more than 500 items) was listed on the return of the warrant. The *786State emphasizes in its motion for rehearing that no antique pistols appear on the return.

The parties stipulated that if Ivan McElroy were called to testify he would testify as follows:

“(a) he is the owner of thirty (30) antique pistols,
(b) he is a collector and would qualify as an expert as to value of the antique pistols,
(c) he stored the 30 antique pistols in a mini-storage shed located at 4632 South Lamar, which is in Travis County, Texas, on September 1,1976,
(d) on November 3, 1976, he discovered that the pistols were missing from the above described storage facility,
(e) he had given no one permission to take the 30 antique pistols from that location,
(f) on May 27, 1977, the pistols were found pursuant to a search warrant which was executed on May 27,1977, at 4406 Lockhart Highway, Travis County, Texas,
(g) the premises described in the search warrant were under the direct care, custody and control of Daniel P. King in that it was his place of residence,
(h) the value of the 30 pistols at the time of the theft in Travis County was $7,725.00.”

As the State so aptly puts it, “Unless McElroy was present at the time the warrant was executed, one wonders how McEl-roy could have had personal knowledge that the pistols were ‘found ’ there.”3 By such cuts at the credibility of the stipulations, the State severed the only threads from which dangled its circumstantial evidence case. Only those stipulations arguably could have served as proof of appellant’s possession of the pistols alleged in the indictment, but the State now convinces us the stipulations are hearsay. A conviction cannot rest solely on hearsay. Lumpkin v. State, 524 S.W.2d 302 (Tex.Cr.App.1975).

Regarding the warrant, the State further instructs this Court as follows:

“Also, note well the indictment alleged that ‘thirty (30) antique pistols’ owned by Ivan McElroy were stolen. The affidavit for search warrant asked to seize, among other things, ‘antique pistols.’ However, there is nothing to show that the ‘antique pistols’ the affiant had in mind were the same as the ‘thirty (SO) antique pistols’ of McElroy alleged in the indictment.”

Likewise, there is nothing to show that the pistols McElroy had in mind were the same as the ones alleged in the indictment.4

In a circumstantial evidence case, such as this one, the evidence must exclude every reasonable hypothesis other than the guilt of the accused, and on appeal this Court will not presume any acts against the accused not shown to have been committed by him. Gutierrez v. State, 628 S.W.2d 57 (Tex.Cr.App.1982) (Opinion on Appellant’s Motion for Rehearing); Culmore v. State, 447 S.W.2d 915 (Tex.Cr.App.1969). In determining whether incriminating circumstances are sufficient, each case must be tested by its own facts. Flores v. State, 551 S.W.2d 364 (Tex.Cr.App.1977).

The evidence introduced at appellant’s trial was insufficient to prove appellant ever possessed antique pistols. Even if the stipulations had not been hearsay, they still would be insufficient to prove appellant possessed the same pistols alleged in the indictment. Compare Hanna v. State, 546 S.W.2d 318 (Tex.Cr.App.1977); Ellard v. State, 509 S.W.2d 622 (Tex.Cr.App.1974); McKnight v. State, 399 S.W.2d 552 (Tex.Cr.App.1966).

*787Accordingly, the judgment is reversed and remanded with instructions to enter a judgment of acquittal.

It is so ordered.

. Appellant made it very clear that he was not stipulating that the testimony would be true.

. A thief caught with the stolen goods in his possession was said to be taken “with the mainour,” i.e., with the goods in manu, in his hands. Black’s Law Dictionary 1105 (Rev. 4th Ed. 1968).

. Unless otherwise stated, all emphasis in this opinion is in the original.

. Although this Court cannot consider such gratuitous statements which are unsupported by the record, the State favors us with the following:

“Moreover, although this record does not clearly show it, this writer feels duty-bound to inform the Court that he has been informed that the antique pistols alleged in the indictment as the stolen property were not seized as the result of the execution of this search warrant.”