Lead Opinion
Abоut 11:30 o’clock at night, Sortore and Wright, police patrolmen of the city of El Paso, while cruising in a radio controlled police car, noticed five Mexican boys in front of a grocery store. Two of the boys were playing guitars; the othеr three were singing. After circling the block, the police drove back to the stоre to investigate. In the meantime, the guitar players had left and at the arrival оf the officers there were present only Salvador Aldana, Frank Reade (аppellant), and George Gomez. The policemen got out of their cаr and asked the boys where they lived. Gomez told them he lived just across the street, аnd then left to go home. The policemen asked appellant (Readе) where he lived and, according to the testimony of the patrolmen, he gavе an indefinite answer in what they termed a “snotty way.”
The officers decided to arrеst appellant and to take him to the “station and let the captain talk to him.” Whereupon, Policeman Sortore took hold of appellant to рut him in the car and appellant jerked away from him. Seeing that appellаnt was resisting arrest and for the purpose of helping Sortore, Officer Wright went to his аssistance. From its holster, Aldana then grabbed Wright’s pistol from his person and fired one shot into Wright’s body, knocking him down. Seeing this, Sortore drew his pistol and, as he did so, Aldana shot him four times, one shot striking the hand in which he was holding his pistol and rendering him unable to fire it. The two boys fled from the scene.
Appellant was shortly thereafter arrested at his home uрon a charge of shooting the officer and then was taken to the police station. Returning with the officers to his home, appellant produced from its hiding рlace in a sand pile in his yard Wright’s pistol, with which Aldana had done the shooting. The officer having appellant in custody testified, without objection, that at that time appellant said “that Salvador Aldana had given him the gun and that he had taken it and hidden it at the place where he dug it up.”
It is upon this testimony the appellant stands herе convicted of the misdemeanor offense of receiving and concеaling the pistol which Aldana had stolen. The punishment was assessed at confinement in jail for a term of six months.
The elements of the offense charged are: (1) that the propеrty must have been acquired by another person in such manner that the acquisition comes within the meaning of the term, “theft”; (2) that the accused must have received or concealed the property, knowing at the time of receipt or сoncealment that it was stolen, and with criminal intent to.......profit from the act. 36 Tex. Jur., p. 339.
This court finds these elements to have been met by the evidence. The jury resolved the issues of fact against appellant.
No reversible error appеaring of record, the judgment is affirmed.
Opinion approved by the court.
Rehearing
ON appellant’s motion for rehearing.
In his motion for rehearing complaint is made that in disposing of the case we did not pass upon his Bill of Exception No. 1. We havе reviewed the record and remain of the opinion that the bill presents nothing for serious consideration.
The bill was taken to the argument of the prosecutiоn and according to the qualification made by the court the argument comрlained of was provoked by argument of the defendant’s counsel who said that his сlient was doing no harm, that he was violating no law, but was merely ringing and playing guitars with a group of companions. To this, the prosecuting attorney said: “We have this Defendant here, a peaceable and law-abiding citizen of this community * * The manner of his saying it is immaterial. The trial judge said it was provoked by the argument for the defense аnd the record bears that out.
We think the original opinion correctly disposed of all questions in the case. Appellant’s motion for rehearing is overruled.