Full opinion text
HAWKINS, J. Conviction is for receiving and concealing stolen property, punishment being two years in the penitentiary. Appellant undertakes to raise a number of questions which appear in the record in such condition that we cannot take cognizance of them. There is found in the transcript a document which purports to be objections to the court’s charge. It is not verified by the trial judge and' does not recite that it was presented, before the main charge was read to the jury. Salter v. State, 78 Tex. Cr. R. 326, 180 S. W. 691; Castelberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679. By bills of exception Nos. 1 and 3 appellant undertakes to bring forward objections to the charge, but by neither of said bills is it shown that the objections were presented in writing before the reading of the main charge. Article 658, C. C. P. (1925); Roberts v. State, 99 Tex. Cr. R. 492, 269 S. W. 103; Wright v. State, 100 Tex. Cr. R. 291, 272 S. W. 787; Butler v. State, 105 Tex. Cr. .R. 228, 288 S. W. 218; Scott v. State, 106 Tex. Cr. R. 376, 292 S. W. 891. Two special requested charges appear in the transcript. Neither of them show whether they were requested before the main charge was read, both are simply marked “refused” over the trial judge’s signature without verification that exception was reserved to such refusal, and no separate bills of exception are found complaining of the court’s action in declining to give them. Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Cunningham State, 97 Tex. Cr. R. 624, 262 S. W. 491; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097. Bills of exception 2 and 4 show no error. They each complain of certain questions asked of witnesses, but in neither bill is the answer given by or expected from the witness set out. The subject of the theft was an automobile. It was stolen in Stanton, Martin county, and abandoned by appellant and two others in Reeves county when about to be •overtaken by officers. It was appellant’s contention that he was not a party to stealing the car, but knew one of tbe other boys was going to steal it, and that after be bad done so appellant and bis companion got in tbe car with tbe tbief and left tbe county where it had been stolen. Tbe jury was justified in finding that appellant was a party to tbe removal of tbe ear and therefore in contemplation of tbe law “concealing” it. Tbe word “conceal” is not to be given tbe literal construction of hiding, but may be by handling tbe property in a manner that would throw tbe owner off bis guard in his search for it. Property may be concealed by carrying it off. Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45; Moseley v. State, 36 Tex. Cr. R. 578, 37 S. W. 736, 38 S. W. 197. Tbe judgment is affirmed. ©s»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes <S=»For otter cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
Oi) Motion for Rehearing. LATTIMORE, J. A strong appeal is made to us to vary the established rules of this court, and to depart from all tbe precedents in view of what is set up as tbe merits of this defense. If tbe rules be right and tbe precedents .be sound, tbe unwisdom and injustice of. a departure in a particular case would be apparent. This court cannot make fish of one and flesh of another. If we were willing to set tbe law aside in one case, manifestly we could not justify our failure to set it aside in all cases. However, tbe facts in this case are not such as to lead us to conclude that we have here a youth of such innocence and lack of guile, as to greatly appeal to this court. We observe that tbe facts show practically without dispute that appellant and two other boys discussed tbe theft of a particular car, and that appellant and one of the .boys were afraid to take the car, but when it was taken by tbe third boy, these two willingly got into tbe car and rode from Martin county to Pecos in said stolen property. We perceive little, if any, difference in tbe turpitude of one who is not willing to first lay bold upon tbe property of bis neighbor, but at a distance watches another actually take same into bis possession and then in a few yards or blocks unites with tbe actual taker in tbe further removal of tbe property. Appellant makes tbe point in his motion that tbe indictment charging tbe receiving and concealing of stolen property alleged that same was received from some person to tbe grand jurors unknown, and it is claimed there is no testimony in tbe record supporting tbe proposition that the grand jury made any effort to ascertain tbe name of tbe party from whom appellant so received said property. We have carefully examined tbe record, and find that no witness testified that be knew the name of tbe party from whom appellant received tbe stolen car. Appellant’s confession does not name such party. Tbe sheriff and night watchman at Pecos who recovered tbe car and saw three parties in it, and one of whom arrested appellant and a companion— neither testified to knowing tbe name of tbe party from whom appellant received said car. In fact, they denied knowing it either at tbe time of tbe trial or when they were before the grand jury. Mr. Zimmerman, sheriff of Martin county, said that about ten days after this theft a boy was brought from Pecos supposed to be tbe third party engaged in this theft, but that appellant and bis companion both denied positively that this boy was implicated, and that be released said boy. He said be did not know tbe name of the party from whom appellant got tbe car, either at tbe time of tbe trial or when before tbe grand jury. Appellant insists that Williams v. State 69 Tex. Cr. R. 163, 153 S. W. 1136, should be held authority for reversing this case. We do not so understand that case. It was -laid down by this court in Yantis v. State, 65 Tex. Cr. R. 564, 144 S. W. 947, that unless tbe record in some way discloses that witnesses who were before tbe grand jury, or who gave testimony on tbe trial, knew the name of tbe alleged unknown person from whom the accused received the stolen property, or unless it is shown affirmatively that the grand jury, by tbe use of more diligence than they exercised, could have ascertained tbe name of such person, no error would appear. This case is followed by Shipp v. State, 84 Tex. Cr. R. 623, 209 S. W. 657, and in our opinion announces a correct proposition of law. The other contentions made by appellant were discussed, and we think correctly decided, in tbe original opinion. The motion for rehearing will be overruled.