Jesse Bros. v. State

White, Presiding Judge.

Two counts were contained in the indictment; one for theft, and one for receiving stolen property knowing it to have been stolen,—the allegation as to description of the animal and possession being that it was “one certain yearling ” taken from the possession of one Osborne, who was holding possession thereof for one J. W. Waters. Appellant was found guilty, upon the second count, for receiving the stolen property knowing it to have been stolen, and his punishment was assessed at two years in the penitentiary.

A motion was made to quash the second count in the indictment, and the one upon which defendant has been convicted, because said count does not specifically charge a theft of the animal by Mat Roberts, from whom defendant is alleged to have received it knowing it to have been stolen, but simply charges in general terms that Mat Roberts had stolen said animal from Osborne, and that defendant received and fraudulently took the same into his possession from Mat Roberts, the same having been acquired by Mat Roberts in such manner as that the acquisition came within the meaning of the term theft. The objection is that the allegations were conclusions, rather than statements of facts essential to charge the crime of theft by Mat Roberts.

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 Ro. 5Í3, prescribed for receiving stolen property, in Willson’s Criminal Forms, page 330. Under the great weight of authority, the form is unquestionably sufficient. (See 1 Whart., Precedents and Indictments, 4 ed., No. 450; 2 Archbold’s Crim. Practice and Pleading, 8 ed., top p. 1435, 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. 983, 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 Ct. App., 304.)

After his motion to quash was overruled, defendant interposed a special plea of autrefois acquit, alleging that he had formerly been tried and acquitted of this same offense, and as exhibits to and parts of his plea he set out the former indictment and former

Opinion delivered November 27, 1886.

judgment of acquittal. A demurrer to this plea by the district attorney was rightly sustained by the court, the plea showing upon its face that there was not an identity of offenses in the two cases charged. (Wright v. The State, 17 Texas Ct. App., 152; Alexander v. The State, 21 Texas Ct. App., 406; Shubert v. The State, Id., 551.)

Defendant’s third bill of exceptions was to a paragraph of the court’s charge wherein the jury were instructed: “If you find defendant was in possession of said animal, and you find he made an explanation of such possession, you will inquire first to determine if the same was reasonable, natural or probable, and if you find it so, then, in order to convict the defendant on either count, you must find such explanation to have been false; and unless you so find beyond a reasonable doubt, you will find the defendant not guilty.” The correct rule is that where a party in possession of property recently stolen gives an exculpatory explanation of his possession which is reasonable or probable, then the burden devolves upon the State to prove its falsity; otherwise he is entitled to be acquitted. (Johnson v. The State, 12 Texas Ct. App., 385; Sitterlee v. The State, 13 Texas Ct. App., 587; Irvine v. The State, Id., 499; Ross v. The State, 16 Texas Ct. App., 554; Miller v. The State, 18 Texas Ct. App., 34; Loving v. The State, Id., 459; Windham v. The State, 19 Texas Ct. Ap., 413.)

We have given the statement of facts in this record our very careful consideration, and we do not believe the evidence as here shown sufficiently establishes defendant’s knowledge of the fact that the animals he purchased from Roberts had been stolen by Roberts, so as to warrant a conviction for receiving stolen property knowing it to have been stolen. A hypothesis that he did not know that fact is, under the evidence as shown us, by no means unreasonable or improbable.

The judgment is reversed and the cause remanded.

Reversed and remanded.