Zweig v. State

• Decision Date: 30 April 1913
• Docket Number: (No. 2080.)
• Citation: 171 S.W. 747
• Parties: ZWEIG v. STATE.
• Court: Texas Court of Criminal Appeals

171 S.W. 747

ZWEIG v. STATE.

(No. 2080.)

Court of Criminal Appeals of Texas.

April 30, 1913.

On Motion for Rehearing, March 11, 1914.

On Second Motion for Rehearing, March 25, 1914.

Appeal from District Court, Milam County; J. C. Scott, Judge.

Louis Zweig was convicted of receiving stolen goods, and he appeals. Affirmed.

W. A. Morrison, U. S. Hearrell, and M. G. Cox, all of Cameron, and Lightfoot, Brady & Robertson, of Austin, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted under an indictment charging, first, that appellant was guilty of theft in the state of Missouri and brought the stolen property into this state. This count was not submitted to the jury. The second count, which was submitted and under which he was convicted, omitting formal parts, charges: That appellant on or about the 31st day of October A. D. 1910, in the county of St. Louis, state of Missouri, and anterior to the presentment of this indictment, did unlawfully and fraudulently receive from Lefty Linnaman and other parties to the grand jury unknown certain corporeal personal property (here follows a description of the property and its value); the same then and there —

"being the property of and belonging to the Sanders Duck & Rubber Company, a corporation duly incorporated under the laws of Missouri, and which said property had theretofore been acquired by the said Lefty Linnaman and other parties to the grand jurors unknown, in such manner as that the acquisition of the same comes within the meaning of the term `theft,' the said Louis Zweig then and there well knowing the same to have been so acquired at the time he received the same as aforesaid, and which said acts by the said Louis Zweig were, by the laws of the state of Missouri then and there in force, the offense of receiving stolen property, and which acts, if the same had been committed in the state of Texas, would, under the laws of the said state of Texas then and there in force, have been the offense of receiving stolen property; and the said Louis Zweig, did afterwards unlawfully, viz., on or about the 21st day of November, A. D. 1910 bring the aforesaid property into the state of Texas and into the county of Milam."

We have copied the indictment because many of the contentions of appellant are based thereon.

The first complaint is that the count in the indictment is insufficient because it fails to allege the date that Lefty Linnaman and others committed the theft. While appellant says in his brief he has been unable to find any authorities on this question, yet he earnestly insists that it is essential that the date of the original theft shall be stated. By reading the indictment it is seen that appellant is prosecuted for receiving stolen property knowing that it had been stolen and bringing it into this state. Whether or not it is necessary in an indictment charging one with receiving stolen property, to allege the date of the original theft is no new question in this state. When the Supreme Court had jurisdiction in criminal matters this question was before them in the case of State v. Perkins, 45 Tex. 10, and they held that it was unnecessary to allege "the time and place of the original taking," citing Bishop's Crim. Proc. § 928. And since the creation of this court, in the case of Brothers v. State, 22 Tex. App. 447, 3 S. W. 737, this question is again decided adversely to appellant's contention, this court saying:

"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, page 220 (now section 1524, White's Ann. Code). Under the great weight of authority, the form is unquestionably sufficient. See Whart. Precedents and Indictments (4th Ed.) No. 450; 2 Archbold's Crim. Practice and Pleading (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 of the stolen things and their ownership. The thing stolen must be described in the same manner as in larceny. The name of the thief is not identifying matter, and hence it need not be alleged. The owner's name is essential to identification; hence it must be stated if known. Commonly in England and in numbers of our states, the indictment does not aver from whom the stolen goods were received. Some of our American cases require it.' 2 Bish. Crim. Prac. (3d Ed.) §§ 982, 983; and to the same effect see 1 Whart. Crim. Law (8th Ed.) § 997. In Texas it has been the rule that an indictment for receiving stolen property must allege the name of the owner of the property if known, and the name of the person from whom received. State v. Perkins, 45 Tex. 10. Judge Willson's form is sustained by all standard authorities, and the count here complained of is in compliance with said form. It was not error to overrule the motion to quash. Nourse v. State, 2 Tex. App. 304."

In these and cases cited in them will be found a discussion of all questions raised by appellant in his motion to quash, and which decide all of them adversely to him.

A serious question in the case is that, the state having alleged that appellant received the stolen property "in the county of St. Louis," the proof must show that he received the property in that county. Is this an essential allegation in the indictment? As applicable to this case, article 951, Pen. Code 1895 (Pen. Code 1911, art. 1431), reads:

If any person having received stolen property in any other state, knowing the same to have been stolen, shall bring into this state any property so acquired or received, he shall be deemed guilty of receiving stolen property, and shall be punished as if the offense had been committed in this state.

Are the words in the "county of St. Louis," not being an element of the offense (for it was wholly unnecessary to allege in what county in Missouri the property was received, as held by all the authorities), in any way descriptive of the identity of what is legally essential to the charge contained in the indictment? In the case of Mayo v. State, 7 Tex. Cr. App. 346, the question of what is descriptive of the offense and what may be treated as a surplus allegation is discussed at length, and the rule is said to be:

"A rule almost fundamental is that no allegation, whether it be necessary or unnecessary, or more or less particular, which is descriptive of the identity of what is legally essential to the charge in the indictment, can be rejected as surplusage. 1 Bishop's Cr. Proc. § 485; Warrington v. State, 1 Tex. App. 168. But allegations not essential to constitute the offense, and which might be entirely omitted without affecting the charge against the defendant, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded. United States v. Howard, 3 Sumn. 12 [Fed. Cas. No. 15,403]. And where an indictment contains matter unnecessary to a description of the offense, it may be rejected. State v. Coppenburg, 2 Strob. [S. C.] 273. Again, if, eliminating surplusage, an indictment so avers the constituents of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance under our Code. Coleman v. State, 2 Tex. App. 512; Burke v. State, 5 Tex. App. 74. A variance in the name in an indictment will not be fatal if the name be immaterial to constitute the offense and may be rejected as surplusage. 2 East P. C. 593; Roscoe's Cr. Ev. 82."

Tested by this rule, the words "county of St. Louis" may be rejected as surplusage, and still all the elements would be charged and the indictment would be so definite that appellant could successfully plead it in bar of any subsequent prosecution for this offense. In the case of Clark v. State, 41 Tex. Cr. R. 641, 56 S. W. 621, Presiding Judge Davidson aptly states the correct rule:

"This is a well-settled principle of criminal pleading: If, eliminating surplusage, the indictment so avers the constituent elements of the offense as to apprise the defendant of the charge against him, and enable him to plead the judgment in bar of another prosecution, it is good in substance, under our Code, and therefore sufficiently charges the offense. McConnell v. State, 22 Tex. App. 354 [3 S. W. 699, 58 Am. Rep. 647]; Coleman v. State, 2 Tex. App. 512; Burke v. State, 5 Tex. App 74; Mayo v. State, 7 Tex. App. 342; Holden v. State, 18 Tex. App. 91; Cudd v. State, 28 Tex. App. 124 ; Hammons v. State, 29 Tex. App. 445 ; Taylor v. State, 29 Tex. App. 466 ; Lomax v. State, 38 Tex. Cr. R. 318 ."

Numerous other cases might be cited, but we do not deem it necessary to do so. If it was essential to allege that the property was received in any certain county in a state, or if the allegation was descriptive of any essential allegation in the indictment, the authorities cited by appellant would be in point but as it was wholly unnecessary under our Code to allege in what county the property was received, and where the words are used, they are not descriptive of what is legally essential to state in the indictment, and, further, when these words are omitted, the indictment specifically charges an offense under our Code, and in language that it could be pleaded in bar of any other prosecution for that offense, we hold that the trial judge did not err in treating these words as mere surplusage. Entertaining this view, it is unnecessary to discuss or determine whether or not the city of St. Louis is or is not in fact a part and parcel of the county of St. Louis, nor the many...