Arcia v. State

• Decision Date: 13 November 1889
• Citation: 12 S.W. 599
• Parties: ARCIA <I>v.</I> STATE.
• Court: Texas Court of Appeals

Page 599

12 S.W. 599

ARCIAv.

STATE.

Court of Appeals of Texas.

November 13, 1889.

Appeal from district court, Webb county; RUSSELL, Judge.

Marteriano Arcia was convicted on an indictment for receiving and concealing stolen property knowing the same to have been stolen. He appeals from the judgment of conviction. Pen. Code Tex. defines "theft" as the fraudulent taking of property belonging to another from his "possession," or from the possession of some one holding it for him. By article 729, "possession" is declared to consist in "the exercise of actual control, care, or management of the property, whether the same be lawful or not."

B. Coopwood, for appellant. Asst. Atty. Gen. Davidson, for the State.

WHITE, P. J.

Appellant was convicted for receiving and concealing stolen property knowing the same to have been stolen. The indictment charged that the offense was committed on or about June 8, 1888. The indictment was presented and filed in court on June 11, 1888. It is fundamental that the proof must correspond with the allegation. With regard to the allegation in an indictment of the time of the commission of the crime, the rule is also well settled by our statute that "the time mentioned must be some date anterior to the presentment of the indictment, and not so remote that the prosecution of the offense is barred by limitation." Code Crim. Proc. art. 420, subd. 6. But while the time alleged must be anterior to the presentment of the indictment, it is not material that the exact date stated in the indictment be proved as alleged. The proof may extent back to any date not barred by limitation, on the one hand; and on the other, may establish any subsequent date to that alleged, provided it be a date anterior to the date of the presentment or finding of the indictment. Temple v. State, 15 Tex. App. 304; O'Connell v. State, 18 Tex. 366; Lucas' Case, 27 Tex. App. 322, 11 S. W. Rep. 443; Willson, Crim. St. § 1049. If, however, the proof shows that the date of the commission of the offense was not anterior, but subsequent, to the date of the finding and presentment of the indictment, then, indeed, it is manifest, beyond question, that the variance between the allegation and proof is fatal, because it is evident that the indictment could not possibly have embraced and comprehended an offense not committed, and a defendant could not legally be convicted of an offense not legally charged and embraced in the indictment.

In determining the question as to whether the evidence in a case appealed to this court is sufficient to support and sustain the allegations in an indictment, "we must be controlled as to the facts of a case by the statement of facts, and cannot presume or infer that the evidence adduced on the trial was different from that embraced in a duly-authenticated statement of facts, except when a bill of exceptions contradicts or adds to such statement, in which case the bill of exceptions will control. * * * This is the only safe rule. It would be a dangerous practice, and one which we think is not sanctioned by the law, to indulge in presumptions and inferences in such cases. Such has not been the practice heretofore." Davenport v. State, (Austin term, 1889,) 11 S. W. Rep. 836. This rule is in no manner modified or changed by the fact that the case has been once before on appeal to this court. Arcia v. State, 26 Tex. App. 193, 9 S. W. Rep. 685. We are not authorized to look to the record on a former appeal to correct errors or omissions in a statement of facts on the pending appeal. As presented on the second appeal, as to the facts in evidence, the case must stand upon its own merits. We could as well, in support of the verdict and judgment, supply the testimony of a most important witness who testified on the previous trial, but whose testimony was not heard and passed upon by the jury who found the second verdict. The conviction must be sustained, or it must fall on the record made up upon the trial from which the appeal is taken, without reference to extraneous facts.

Now, in the case as we have it before us on this appeal, the indictment alleges that the crime was committed on June 8, 1888. The indictment was filed June 11, 1888, three days thereafter. The trial from which this appeal is prosecuted was had on July 23, 1889, one year and twenty-two days after the finding of the indictment. The witness Hatley (or Hartley) testified that a sack of money was taken from his possession on June 9, 1888, and that he got it all back but $44 from Mr. Sanchez, the sheriff, on the following day, but he does not know from whom it was recovered. Cecilia Salazar testified: "I recollect the robbery of the express, but don't remember the date;" and, after detailing facts with regard to the acts and doings of defendant and one Renteria, with regard to money which they took out of a sack or white bag, she says: "This occurred at my house, I think in June, last year." Another witness, Mendiola, says: "I was in Laredo on June 10, 1888, attending court. I saw the money sack as they were bringing it to the court-house." This is the sum total of the testimony directly going to establish the fact that the crime...