Mehlman v. State

• Decision Date: 26 April 1922
• Docket Number: (No. 6932.)
• Citation: 244 S.W. 602
• Parties: MEHLMAN v. STATE.
• Court: Texas Court of Criminal Appeals

244 S.W. 602

MEHLMAN v. STATE.

(No. 6932.)

Court of Criminal Appeals of Texas.

April 26, 1922.

Rehearing Denied November 8, 1922.

Appeal from District Court, Ellis County; W. L. Harding, Judge.

Mike Mehlman was convicted of fraudulently receiving stolen property, and he appeals. Affirmed.

Tom Whipple, of Waxahachie, for appellant.

R. G. Storey, Asst. Atty. Gen., for the State.

MORROW, P. J.

Appellant appeals from a judgment of conviction of the offense of fraudulently receiving stolen property, a misdemeanor. It is charged that he received property from Jess Lee Jones and Burnice Winn. The defense urged is that he received the property from Winn, and not from Jones, and that he did not know it was stolen. Jones and Winn both testified that the property was stolen and that they together sold it to the appellant.

Appellant, in his confession and testimony, admits that he received the property, and that Jones was present, but denies that he received it from Jones. There was testimony to the effect that on other occasions appellant had received stolen property from both Jones and Winn and others, who acted with Winn on different occasions. There is nothing in the nature of testimony in the instant case, as revealed in the bills of exceptions, which differentiates it from the rule which sanctions proof of other criminal transactions in solving the issue of guilty knowledge in prosecutions for this offense. On the subject Mr. Wharton says:

"In prosecutions for receiving stolen goods, guilty knowledge is the gist or substance of the offense to be established by the prosecution, and evidence of collateral offenses is admissible to establish such knowledge." Wharton's Crim. Ev. vol. 1, § 35, p. 135.

See, also, Morgan v. State, 31 Tex. Cr. R. 9, 18 S. W. 647; Kaufman v. State, 70 Tex. Cr. R. 438, 159 S. W. 58; Hennessy v. State, 23 Tex. App. 355, 5 S. W. 215.

There was no error in refusing to instruct the jury to acquit unless the appellant knew that the property was stolen from Coleman. It was enough if he knew it was stolen. It was not necessary that the name of the owner should be charged or proved. See Penal Code, art. 1349, defining the offense; and for form of indictment, see Branch's Ann. Tex. Penal Code, § 2530.

The other complaints made by the appellant of the manner of the trial have been considered, but a discussion of them is deemed unnecessary. Suffice it to say that from them we discern no error.

The judgment is affirmed.

On Motion for Rehearing.

HAWKINS, J.

The indictment alleges that appellant fraudulently received from Winn and Jones certain described property which was the property of Joe Coleman, and which had been stolen from him. In the motion for rehearing appellant assails that portion of our opinion in which we held:

"There was no error in refusing to instruct the jury to acquit, unless the appellant knew that the property was stolen from Coleman."

The state having alleged that the property was stolen from Coleman, it was necessary for it to make proof of that fact; but it was not necessary to prove that appellant, in receiving the property, knew it was stolen from any particular party. If he received it fraudulently, knowing the same to have been acquired by theft, it would be immaterial as to whether he knew the owner.

Winn and Jones testified upon the trial of appellant that they had burglarized Coleman's store, and stolen the property described in the indictment, and afterwards sold the same to appellant. The point is made that Winn and Jones were accomplices, and that the record is bare of corroborative evidence as to the theft. If...