McLeroy v. State, 18236.

• Decision Date: 29 April 1936
• Docket Number: No. 18236.,18236.
• Parties: McLEROY v. STATE.
• Court: Texas Court of Criminal Appeals

97 S.W.2d 184

McLEROY v. STATE.

No. 18236.

Court of Criminal Appeals of Texas.

April 29, 1936.

Rehearing Denied October 14, 1936.

Commissioners' Decision.

Appeal from District Court, Panola County; T. O. Davis, Judge.

S. E. McLeroy was convicted of receiving and concealing stolen property, and he appeals.

Affirmed.

Long & Strong and J. R. Duran, all of Carthage, and Sanders & McLeroy, of Center, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for two years.

The proof on the part of the state was to the effect that on the 8th of November, 1934, some one stole a Ford V-8 automobile from P. W. Moreland, and that appellant, after coming into possession of said stolen car, drove it into a river bottom and burned it. Appellant testified that he purchased the car from a party who introduced himself as R. T. Lawson. He testified further that he did not know the car was stolen at the time he bought it, and that, after hearing that it had been stolen, he burned it, in order to prevent any one from finding him in possession of stolen property. He said he learned definitely that the car had been stolen after he had burned it.

The court instructed the jury to acquit appellant of concealing the car if they entertained a reasonable doubt as to whether he knew the same had been stolen at the time he burned it. As to receiving said property, the jury were instructed to acquit appellant if they entertained a reasonable doubt as to whether he knew the car was stolen at the time he received it. In submitting the case to the jury from the state's standpoint, the court required the jury to believe beyond a reasonable doubt that appellant fraudulently received or concealed the car before he could be convicted. If appellant knew the car had been stolen at the time he burned it, under his own testimony, his act in burning same constituted a fraudulent concealment. Under the circumstances, we would not feel warranted in holding that the trial court committed reversible error in failing to advise the jury that appellant could not be convicted if they entertained a reasonable doubt as to whether his concealment of said property was fraudulent. As already observed, the court required the jury in the charge to find beyond a reasonable doubt that said concealment was fraudulent. Under the facts reflected by the record, the omission could not, in our opinion, have operated to the prejudice of the appellant. Under the terms of article 666, C.C.P., we are not warranted in reversing a judgment because of an error in the charge, unless such error was calculated to injure the rights of the accused or unless it appears from the record that he has not had a fair and impartial trial.

The judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, Judge.

Appellant insists that his motion to quash the indictment should have been sustained, and that we erred in not so holding in our original opinion. The point against the indictment was that, after alleging that the automobile in question was received by appellant from some person to the grand jurors unknown, the indictment should have gone further and set out that the grand jury could not by reasonable diligence and investigation have ascertained the name of such person. The exact point was decided against appellant's contention in Melton v. State (Tex.Cr.App.) 56 S.W. 67, and the proposition there laid down is still the law in this state. We find nothing in Morgan v. State (Tex.Cr.App.) 80 S.W.(2d) 975, cited by appellant, contrary to the above holding. The question there discussed was the failure...