Brusenham v. State

CHRISTIAN, Judge. The offense is receiving and concealing stolen property; the punishment, confinement in the penitentiary for five years. On the night of the 10th of September, 1935, three unidentified men stole some “Wilson Tongs” of the value of two hundred dollars from the Overtex Oil and Gas Company. Witnesses for the State testified that about a week later said property was found in the possession of H. L. Lewis, Joe Hunnicutt and appellant. Again, the State’s testimony was to the effect that appellant and Hunnicutt offered to sell the tongs for seventy-five dollars. Appellant testified that he had nothing to do with the theft. He denied that he received the property from any person. In short, according to his version, he was guilty neither of theft nor of receiving stolen property. We deem the evidence sufficient. See Palermo v. State, 82 5. W. (2d) 960. It was alleged in the indictment that appellant received the stolen property from some person to the grand jurors unknown. The assistant district attorney testified, in part, as follows: “I was present in the grand jury at the time of the investigation of the alleged theft of the tongs and at that time the name of the party from whom the property was received was unknown.” Appellant contends that the foregoing statement is not sufficient to show the exercise of diligence on the part of the [252] grand jury in an effort to determine the name of the person from whom the property was received. We find nothing in the record to suggest that the grand jury might, by the use of diligence, have ascertained the name of the party from whom appellant received said property. We quote from Palermo v. State, supra, as follows: “It is the rule that if there is nothing in the evidence in the trial to suggest that the grand jury might, by the use of diligence, have ascertained the name of the party from whom the property was received, proof that they did not know such name is sufficient to sustain the allegation that same was unknown. Branch’s Annotated Penal Code, section 2444; Wright v. State (Tex. Cr. App.), 45 S. W., 1016.” The judgment is affirmed. Affirmed. 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.