Morgan v. State , 128 Tex. Crim. 290 ( 1935 )

The appellant was tried and convicted of the offense of fraudulently receiving and concealing a stolen automobile, and his punishment was assessed at confinement in the State penitentiary for a term of five years.

The indictment contains one count for the theft of a Chevrolet automobile from the Producers Lumber Company of Seminole, Oklahoma, a corporation, and one count charging the appellant with fraudulently receiving said automobile' from some person unknown to the grand jury.

The State's testimony shows that the appellant was in possession of the motor of the alleged stolen car; that he appeared before the grand jury which returned the indictment against him and testified that he received the motor from two boys who, accompanied by two young ladies, spent the night in one of his tourist cabins; that one of the boys registered and that his name appeared on the register; that they pawned to him the motor for $1.50 and at the time of so doing they promised to redeem it within a few days; that after the expiration of some six weeks, when they failed to redeem it, he had the motor taken out of his car and the pawned one put in as it was a better motor.

The appellant's first contention is that there is a variance between the allegations and the evidence. It appears from the testimony that the grand jury could have ascertained from appellant's register the name of the party from whom he received the motor and which register the appellant offered to furnish to the grand jury. If so, the grand jury were not justified in indicting appellant for receiving stolen property from some person unknown to them. See Williams v. State, 153 S.W. 1136; McKay v. State, 90 S.W. 653; Jorasco v. State, 6 Texas. Appeals, 238.

Another very serious question is presented by the fact that: the indictment charged the appellant with fraudulently receiving and concealing a stolen Chevrolet automobile knowing it to have. been stolen. The State in an effort to support said allegation. introduced in evidence the appellant's voluntary confession in which he stated that he acquired a motor from two boys who pawned it to him for the sum of $1.50. The State proved by circumstances that the motor was a part of the alleged stolen car, but, the State having shown by appellant's confession that he acquired the motor in a lawful manner consistent with his innocence, the State was bound thereby unless his explanation of the acquisition and possession thereof was proven, either by direct or circumstantial evidence, to be false. See Banks v. State, 56 Tex. Crim. 262; Castleberry v. State, 35 Tex.Crim. Rep.,33 S.W. 875; Bryan v. State, 54 Tex.Crim. Rep..

While proof of possession of a part of recently stolen property may be a sufficient circumstance to show the theft of the entire property, (See White v. State, 17 Texas Appeals 189[17 Tex. Crim. 189]; Rose v. State, 52 Tex.Crim. Rep.), yet the State by introducing in evidence the appellant's voluntary confession showed that he received only the motor of the car. The State, in order to sustain the allegation in the indictment that appellant fraudulently received the automobile, had the burden not only to disprove the exculpatory statement that the motor was pawned to him by two boys, but also had to prove that he fraudulently received not only the motor but the car.

For the errors hereinabove pointed out, the judgment of the trial court is reversed and the cause is remanded.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON STATE'S MOTION FOR REHEARING.