Sands v. State ( 1891 )

ON MOTION FOR A BEHEADING.

HURT, Judge.

At a former day of this term the appeal was dismissed. A rehearing is now asked, and after a careful consideration of the question involved, we are of the opinion that the motion ought to be granted.

The recognizance recites that appellant stands charged in the County Court “with the offense of receiving and concealing stolen property of the value of $10, knowing the same to have been stolen, and who has been convicted of said offense,” etc. The offense here attempted to be described is that denounced in article 743 of our Penal Code, which reads as follows: “If any person shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term ‘theft/ knowing the same to have been so acquired, he shall be punished,” etc.

The defect supposed to exist in the recognizance is, that the word “stolen” is used instead of the statutory words “acquired * * * in such manner as that the acquisition comes within the meaning of the term ‘theft.’ ” This objection is met by the provision of article 739 of the Penal Code, and which article is embraced in the same chapter of the code that contains article 743, which relates to the subject of “theft in general.”

By article 739 it is provided, that “the word ‘steal’ or ‘stolen, ’ when used in this code in reference to the acquisition of property, includes property acquired by theft.” Thus we have a fixed, definite meaning to the word “stolen;” and giving to it this meaning, we are of opinion that the offense is sufficiently set forth and described in the recognizance. We do not wish to be understood as holding the recitation of the offense in said recognizance would be a sufficient averment of the offense in an indictment charging the offense of acquiring and concealing stolen property.

. Motion for rehearing granted.

Judges all present and concurring.