Hodges v. State
| Decision Date | 27 November 1886 |
| Citation | 3 S.W. 739 |
| Parties | HODGES <I>v.</I> STATE.<SMALL><SUP>1</SUP></SMALL> |
| Court | Texas Court of Appeals |
The conviction in the case was for receiving and concealing embezzled property, knowing it to be embezzled, the charging part of the indictment appearing, in substance, in the opinion of the court. The penalty assessed by the verdict was a term of five years in the penitentiary. The transcript brings up no statement of the facts.
Bullock & Trenchard, for appellant, maintaining that the indictment was insufficient to charge the offense. Asst. Atty. Gen. Burts, for the State.
In this case the indictment was drawn, and the conviction had, under the act of March 16, 1883, (Gen. Laws Eighteenth Leg. p. 24,) which reads as follows: "If any person shall fraudulently receive or conceal any property which has been acquired by another in such manner as that the acquisition comes within the meaning of embezzlement, knowing the same to have been so acquired, he shall be punished in the same manner as the person embezzling the same would be liable to be punished." It is insisted by appellant's counsel that the above quoted act is inoperative and void, because "embezzlement" is not an offense under our laws, eo nomine, and is not defined in the Penal Code, and hence a conviction for embezzlement, or receiving, etc., embezzled property, cannot be sustained. We must confess that we are doubtful about our understanding of the objection made to the act by the counsel in their brief, as they have not made their views upon this subject very clear to our minds. We have stated their objections to the law as we understand them. We are unable to see any force in the objections. "Embezzlement" is an offense eo nomine, and is fully defined in the Penal Code. Pen. Code, c. 16 art. 786 et seq. The only defect in said act that we can perceive is that it uses the words "acquired" and "acquisition" where the words "converted" and "conversion" should have been used. There can be no question but that the legislative intent was to create and punish as an offense the receiving or concealing of embezzled property the same as the receiving or concealing of stolen property. Pen. Code, art. 743. This intent being plain from the act itself, we must give such intent effect, although the language used therein is not as critically correct as it might have been made. The act is not so indefinitely framed, or of such doubtful construction, in our opinion, that it cannot be understood, and hence it cannot be held inoperative because it uses some words not as appropriate to express the legislative intent as would be some other words.
An objection to the indictment is urged. The objection is that said indictment does not allege the facts which constituted the embezzlement. The indictment alleges substantially that the defendant did fraudulently receive from Jim Gilbreth, and did fraudulently conceal, certain property, to-wit, a horse, the same being the property of Boon Halford, and the same being of the value of $100, which said property had been acquired by said Gilbreth in such manner as that the acquisition comes within the meaning of embezzlement, and that the said defendant received and concealed said horse,...
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