Kahanek v. State

• Decision Date: 13 February 1918
• Docket Number: (No. 4850.)
• Citation: 201 S.W. 994
• Parties: KAHANEK v. STATE.
• Court: Texas Court of Criminal Appeals

201 S.W. 994

KAHANEK v. STATE.

(No. 4850.)

Court of Criminal Appeals of Texas.

February 13, 1918.

Rehearing Denied March 27, 1918.

Appeal from District Court, Lavaca County; M. Kennon, Judge.

Joe Kahanek was convicted of receiving stolen property, and he appeals. Reversed, and cause remanded.

Schwartz & Bagby, of Hallettsville, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was charged with receiving stolen property from George Clark and Joe Haffernik, which property was alleged to belong to J. A. Nachlinger.

The theory of the prosecution, as evidenced by the allegation in the indictment, was that Nachlinger owned a buggy, and Clark and Haffernick stole it and sold it to appellant, and that the evidence would justify the jury in finding that appellant at the time he bought it or received it knew it was stolen property.

The court charged the jury, over appellant's exception duly reserved, that if defendant fraudulently received from George Clark and Joe Haffernik, or from George Clark alone, the buggy mentioned in the indictment, and same had been theretofore acquired from J. A. Nachlinger by the said George Clark and Joe Haffernik, or by George Clark alone, in such manner as to constitute theft thereof, etc., they would find him guilty of receiving stolen property. We are of opinion that appellant's exception to this phase of the charge is well taken. It is necessary in indictments charging this offense to name the parties from whom the stolen property was received by the accused if the names are known, and, if not, the grand jury would be justified in alleging that the names of the parties from whom the property was received were unknown to that body. The authorities seem to be practically unanimous on both propositions. Since the rendition of State v. Perkins, 45 Tex. 10, the jurisprudence has been harmonious to the effect that the names of the parties from whom the accused received the stolen property must be stated. There are quite a number of these cases which will be found collated in Mr. Branch's Ann. P. C. pp. 1366, 1367. Specifically, we might mention Brothers v. State, 22 Tex. App. 447, 3 S. W. 737; McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Franklin v. State, 53 Tex. Cr. R. 547, 110 S. W. 909. In the instant case the grand jury alleged directly and affirmatively that appellant received the property from the two named parties. In order then to convict, it was necessary for the state to meet these allegations with appropriate evidence; otherwise the state's case would fail. In this respect it is somewhat analogous in alleging ownership in a theft case. Wherever descriptive averments are made, whether necessary or not, the proof must meet these averments. But it is the law as announced by the decisions that the allegation of the names of the parties from...