Sands v. State, No. 3764

No. 3764 | Tex. App. | Dec 22, 1891

Lead Opinion

ON MOTION FOR A BEHEADING.

HURT, Judge.

At a former day of this term the appeal was dismissed. A rehearing is now asked, and after a careful consideration of the question involved, we are of the opinion that the motion ought to be granted.

The recognizance recites that appellant stands charged in the County Court “with the offense of receiving and concealing stolen property of the value of $10, knowing the same to have been stolen, and who has been convicted of said offense,” etc. The offense here attempted to be described is that denounced in article 743 of our Penal Code, which reads as follows: “If any person shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term ‘theft/ knowing the same to have been so acquired, he shall be punished,” etc.

The defect supposed to exist in the recognizance is, that the word “stolen” is used instead of the statutory words “acquired * * * in such manner as that the acquisition comes within the meaning of the term ‘theft.’ ” This objection is met by the provision of article 739 of the Penal Code, and which article is embraced in the same chapter of the code that contains article 743, which relates to the subject of “theft in general.”

By article 739 it is provided, that “the word ‘steal’ or ‘stolen, ’ when used in this code in reference to the acquisition of property, includes property acquired by theft.” Thus we have a fixed, definite meaning to the word “stolen;” and giving to it this meaning, we are of opinion that the offense is sufficiently set forth and described in the recognizance. We do not wish to be understood as holding the recitation of the offense in said recognizance would be a sufficient averment of the offense in an indictment charging the offense of acquiring and concealing stolen property.

. Motion for rehearing granted.

Judges all present and concurring.

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Opinion on the Merits

ON THE MERITS.

DAVIDSON, Judge.

Appellant was indicted for receiving and concealing stolen property, knowing the same to have been stolen. The property alleged to have been received and concealed consisted of about one hundred pounds of pork, cut up in small pieces, of the value of $10.

Appellant claims that there was a fatal variance between the allegations in the indictment and the proof, in that the property stolen was not pork, but a live hog, which was afterward killed by parties stealing it. We think this objection is not well taken. Appellant is nob shown to have had anything to do with the taking of the live hog, but that after the hog was stolen and had been cut up he did receive it as alleged in the indictment, and helped to conceal the pork into which the hog had been converted by the parties who had stolen the hog. This, we think, constitutes no variance between the evidence and the allegations, in so far as the defendant is concerned.

It was objected that the confessions of defendant were not admissible, he being under arrest at the time and not having been warned that his statements would be used against him. This objection is answered . by the fact that defendant, notwithstanding he was under arrest, made a statement of facts and circumstances with regard to the pork which was found to be true, which conduced to support his guilt, and which statement made by him led to the finding of the secreted or stolen property by the owner. Confessions under such circumstances are by our statute (Code Crim. Proc., art. 750) expressly excepted from the general rule that confessions made under arrest and where the party was not cautioned are not admissible evidence.

But in our opinion there is a fatal objection to the conviction, for which the judgment must necessarily be reversed. There is no evidence in the record showing what was the value of the alleged stolen, received, and concealed property, nor does it appear that any effort was made to prove the value of this property. “Property to be the subject of theft must have some specific value.” Willson’s Crim. Stats., secs. 1257, 1265. “It is necessary to allege the value of the property; and where it is necessary to allege it, it is necessary to prove it.” Id., sec. 1285.

Because the proof fails to show any value of the alleged stolen property, the judgment is reversed and the cause remanded.

jReversed and remanded.

Judges all present and concurring.