Thomas v. State

ON MOTION FOR REHEARING.

LATTIMORE, Judge.

We have examined the authorities cited in appellant’s motion. They but sustain the proposition that it is necessary that the jury find, in a ease wherein the charge is the receiving and concealing of stolen property, that the property alleged to have been stolen was acquired by theft; that the defendant knowing it to have been so acquired received and concealed the same. Both of these two essential elements were pointedly submitted in the court’s charge, who also in his application of the law to the facts plainly told the jury that before they could convict they must believe beyond a reasonable doubt that the defendant knew the property was acquired by theft.

We can not accept statements in appellant’s motion relative to the kind and character of argument or the manner of trial, in the absence of complaint of such things properly preserved and here presented by bill of exception. It is manifest from the charge of the court that the party who sold or brought to appellant the alleged stolen property on the occasion in question, testified for the State. The information charged that appellant received the stolen property from Levi Washington, who had theretofore stolen it. The charge of the court referred to Levi Washington as an accomplice and instructed the jury regarding the testimony of such accomplice. We are forbidden to reverse cases on matters in the charge, unless we believe that such charge is one which might injure the rights of the accused. Of course we do not know, in the absence of a statement of facts, what Levi Washington testified to, and are therefore unable to determine whether the charge of the court referred to in the original opinion and again attacked in the motion, could have injuriously affected appellant’s rights. Presumptions along this line are indulged in favor of the regularity of the action of the trial court, and are not indulged against it.

The motion for rehearing is overruled.

Overruled.

Hawkins, J., absent.