Brothers v. State

• Decision Date: 27 November 1886
• Citation: 3 S.W. 737
• Court: Texas Court of Appeals
• Parties: BROTHERS <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL>

3 S.W. 737

BROTHERS

v. STATE.¹

Court of Appeals of Texas.

November 27, 1886.

Appeal from district court, Falls county.

The conviction in this case was for receiving stolen property knowing the same to be stolen. The penalty assessed against the appellant was a term of two years in the penitentiary.

The testimony disclosed that the animal described in the indictment was stolen by somebody on the day alleged. Subsequently the owner and two others found it in the possession of the defendant. When his possession was

discovered and challenged, the defendant asserted his claim to the animal, and said that he bought it from one Mat Roberts. He refused to surrender the animal to the owner without proof of ownership, until the owner agreed to produce witnesses, and his responsibility was vouched for by the parties with him, who were known to defendant. For the defense it was testified that the defendant purchased the animal described in the indictment from one Mat Roberts some time before the same was found in the possession of defendant, and that, prior to that purchase, the said Roberts purchased it from a man named Webb. In rebuttal to this, the state proved that shortly before the animal disappeared from the owner's pasture, Roberts and another saw it, and Roberts remarked that there was an animal easily captured. His companion told him (Roberts) who owned the animal. The evidence showed that two animals were taken from the possession of Osborne at the same time, and were found together at the same time in the possession of defendant. The one involved in this prosecution was alleged to be the property of Osborne. The other was alleged to be held by him for one Waters, the general owner. The plea of autrefois acquit set up the defendant's trial under the indictment, involving the receiving, etc., of the latter animal.

J. H. Wharton and Martin & Dickinson, for appellant, maintaining that the trial court erred in sustaining the state's demurrer to the defendant's special plea of autrefois acquit.

Asst. Atty. Gen. Burts, for the State.

WHITE, P. J.

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 No. 512, prescribed for receiving stolen property, in Willson's Criminal Forms, p. 220. Under the great weight of authority, the form is unquestionably sufficient. See 1 Whart. Prec. & Indict. (4th Ed.) No. 450; 2 Archb. Crim. Pr. & Pl. (8th Ed.) top p. 1425, 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...