author: DAVIDSON, P. J. HARPER, J. PRENDERGAST, J.

text:
    PYE v. STATE.
    (No. 2448.)
    (Court of Criminal Appeals of Texas.
    June 25, 1913.
    Rehearing Denied Dec. 3, 1913.)
    1. Embezzlement (§ 43) — Larceny (§ 52) — Evidence — Admissibility.
    In a prosecution for theft or embezzlement of a note, evidence that when the owner learned defendant had pledged the note, he made no objection and did not appear surprised is admissible to show the owner’s consent.
    [Ed. Note. — For other cases, see Embezzlement, Dee. Dig. § 43; Larceny, Cent. Dig. §§ 137, 147; Dec. Dig. § 52.]
    2. Embezzlement (§47) — Larceny (§ 68)— Evidence — Jury Question.
    In a prosecution for theft or embezzlement of a note which was delivered to defendant to enable him to raise money for the owner, the question whether defendant believed he had permission to use the note for his own benefit held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Embezzlement, Dec. Dig. § 47 ; Larceny, Cent. Dig. §§ 180, 181; Dec. Dig. § 68.]
    3. Embezzlement (§ 28) — Larceny (§ 30)— SUFFICIENCY OR INDICTMENT — DESCRIPTION.
    An indictment, charging the theft or embezzlement of a vendor’s lien note, which merely described the instrument as one vendor’s lien note for the payment of $8,000 and of the value of $8,000, is sufficient.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 41, 42; Dec. Dig. § 28; Larceny, Cent. Dig. §§ 64-75, 99; Dec. Dig. §
    Davidson, P. J., dissenting in part.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    F. E. Pye was convicted of and he appeals.
    Reversed and remanded.
    E. T. Branch, Lane, Wolters & Storey, and McDonald Meachum, all of Houston, for appellant. Richard G. Maury, Dist. Atty., of Houston, and C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, P. J.

Appellant was charged in the first count with the theft of one vendor’s lien note for the payment of $8,000 and being of the value of $8,000; and in the second count charged with embezzlement of the note.

The indictment is attacked because it does not sufficiently describe the note. The indictment charges in both counts the note to be, “One vendor’s lien note for the payment of $S,000 and of the value of $8,000.” It is contended the indictment is not sufficient in that the description of the note was not as demanded by the terms of the law. The indictment does not undertake to allege by whom the note'was executed, nor the date of its execution, nor the date of its maturity, nor the date when it was made payable, nor to whom it was payable, nor upon what land or property the vendor’s lien was held, nor in what county it was situated, nor any attempt to describe the property or house or land, nor the county in which it was situated, nor the place where the note was payable, nor any matters of description which would enable appellant to plead a conviction thereon in bar of a subsequent prosecution for the same alleged offense. The case of Calentine v. State, 50 Tex. Cr. R. 154, 94 S. W. 1061, 123 Am. St. Rep. 837, decides this question in favor of appellant’s contention. This case was followed in Patrick v. State, 50 Tex. Cr. R. 499, 98 S. W. 840, 123 Am. St. Rep. 861, 14 Ann. Cas. 177. Under those authorities we are of opinion this indictment is not sufficient. Thus far these cases have not been overruled, and in the opinion of the writer ought not to be. They announce the correct doctrine. This note was before the grand jury evidently, or could have been, because it was used on the trial of the case. They could have given such a description of the note as would have identified it from other notes, and so identified it as to show the very note upon which the prosecution was based, as by giving some description of it that would individuate it. This was not done, and the grand jury failed to allege in the indictment that a better description than that alleged could not be given or ascertained. Therefore under 'these authorities we think this indictment is insufficient. Appellant was convicted and given two years for embezzlement.

A brief statement of the facts perhaps may be necessary. Mr. Goree, an attorney for the Washington County Bank, had in charge for collection an indebtedness for $7,500 against the Shelp Rubber & Supply Company, of which appellant was guarantor. Goree was about to bring suit on said indebtedness, and appellant asked him to hold off, that is, not to do so, whereupon Goree demanded that he, appellant, • give him additional guaranty. Appellant thereupon turned over to him, in order to prevent the bringing of the suit, a vendor’s lien note for $8,000, signed by one Hill, and payable to L. H. Perry, and indorsed by Perry, and which note was the note claimed to be embezzled. Perry testified that he had turned over this note and quite a lot of other notes to appellant, on which he was to borrow money for him, Perry, and that appellant subsequently reported to him that this note was lost, fie returned the other notes to Perry. Perry also testified, when he heard the note was lost, that he had Hill to execute another note, on its face the same as the original, and that on this duplicate note borrowed money from J. N. Taub, a merchant of Houston. - Shortly after Mr. Taub ascertained that Goree held the other note, which was identical with his. He called on Perry to get the other note out of the way, and Perry and appellant went to Goree, and appellant gave Goree another note, which was indorsed by Perry, and the note which was the subject of this indictment was then turned over to Perry by Goree and canceled. Mr. Taub testified that Perry knew of the existence of the note in Goree's hands when he spoke to him, and that Perry did not appear to be surprised when he told him, and that the note was purely accommodation paper, and that he, Taub, held the first lien on the property which overeovered the value of the property.

The evidence shows that the maker of the note, Hill, was a carpenter, working for $3 or $3.50 a day, and that he gave the note for $8,000 to Perry, on which there was a prior lien that practically covered the value of the property. Perry testified that it was a bona fide sale, and that he afterwards returned to said Hill the land paid by Hill as a first | payment, and that the first lien was not released when Hill gave the note, while the other evidence was that the note was an accommodation paper, and given without consideration by Hill, in order to enable Perry to borrow money thereon, and that the note had already been assigned to Mr. Taub and was of no value. Perry testified that he did not give his consent to appellant to put up the note with Goree, but appellant testified that Perry would usually let him do anything he wanted with the collateral, and when the note was surrendered back to Perry by Goree, that Perry was perfectly satisfied at that time, and that the note was not worth' a cent. Appellant’s testimony was that, being guarantor in favor of the Washington County Bank, he deposited the note temporarily with Goree, in order to prevent Goree from suing him at that time, and that he only put up the note temporarily, without any intention either to permanently appropriate it or to cause Perry any loss or to defraud Perry, that he knew that the note was a mere accommodation note and of no value, and that Mr. Hill told him so, and would not go on the stand and deny that it was an accommodation paper, and that he'knew that Mr. Perry had not sold the property, and that the duplicate note had already been assigned to Mr. Taub and the note was of no value, and that Perry would usually let him do anything he wanted to do with the collateral, and that when the note was surrendered to Perry by Goree, Perry was perfectly satisfied, and that the note in the first place was not worth a cent and was a second lien note. Goree testified that when he surrendered the note to Perry and received the note of appellant indorsed by Perry, Perry was apparently satisfied, and made no claim that appellant had stolen his note. Mr. Taub testified that Perry knew of the existence of the note in Goree’s hands when he spoke to him about it, and that Perry did not appear to be surprised when he told him. Mr. Taub further testified that if his first lien was enforced, there would be very little, if any, value of the note.

The evidence further discloses that Perry had sold or mortgaged the land which it is sought to show was connected with this note, or rather there was a debt over that .land for $13,000, and that the property was situated in Houston, and was not in fact worth more than $10,000, if that. The $13,000 indebtedness hanging over it and this $8,000 note created, on this property worth less than $10,000, an indebtedness of $21,000. The state was permitted, over objection of appellant, to prove that after the finding of the indictment in July in this case Perry was sued on the note given to jjet the note in question from Goree, and had to pay $500 as a result of the judgment rendered on said civil suit. It seems, however, appellant paid the $500. There was testimony that there had been other dealings between appellant and Perry in which accommodation paper figured. As we understand this record this property on which all this indebtedness of $21,000 was created was subsequently, after getting rid of this accommodation lien, sold by Perry at $8,000. This may be perhaps a sufficient statement of the case to review some or all of the questions. The $500 note paid by Perry on the judgment was really paid by appellant, or at least Perry was paid the $500 by appellant.

Appellant offered to prove by Perry that he was not out anything on the note itself, and by appellant that the witness Perry never had him arrested, or made any complaint about his having used the note in question to prevent the suit being filed against appellant, and that Perry seemed entirely satisfied with his conduct in the matter when he indorsed the substitute note put up by him to secure the return of the note in question, which testimony was excluded by the court. We think, without stating the reasons for which this was offered, this testimony should have gone to the jury. Taylor v. State, 50 Tex. Cr. R. 377, 97 S. W. 473; Jenkins v. State, 34 Tex. Cr. R. 201, 29 S. W. 1078; Farrar v. State, 29 Tex. App. 253, 15 S. W. 719; Stanton v. State, 42 Tex. Cr. R. 271, 59 S. W. 271.

The state was permitted to show, over objection of appellant, that four months after the indictment was presented that Perry had to pay $500 in cash, in order to be released from his obligation on the substituted security given to Goree, the obligation being that same was subsequent to the finding of the indictment and was proof of acts between other parties, and that same was prejudicial to defendant as showing a loss by Perry subsequent to the presentment of the indictment, and was proof of a judgment in the civil court. It is claimed this evidence was hurtful on the issue of value, and acts done by other parties after the presentment of the indictment could not bind or make a note, valueless at the time of the supposed conversion, become of value, and same was liable to mislead the jury. It is contended by appellant that this proposition is elementary. He cites Nesbitt v. State, 144 S. W. 945; Hatfield v. State, 67 S. W. Ill; Richardson v. State, 46 Tex. Cr. R. 84, 79 S. W. 536. We are of opinion that this contention of appellant, under the authorities, is correct. This was long after the transaction, and if there had been any conversion it was at the time that appellant took the note for his own use. The value of the note was to be determined by its standing at time of conversion. The law fixed that status at that time. The rule is fundamental that, in order to constitute theft or embezzlement, the fraudulent intent and conversion must coincide, that is, in theft the fraudulent intent must exist at the time of the taking. If a party is charged with embezzlement or theft by conversion, then fraud must exist at the time of the conversion. Appellant, of course, after the testimony was admitted, had to meet it the best way he could, but this did not cure the error of its admission. The authorities are all one way on this proposition. .

Again appellant requested the court to give the following instruction:

“The gist of the offense of embezzlement is the fraudulent intent, and before you can convict the defendant, you must believe from the evidence, beyond a reasonable doubt, that the embezzlement, misapplication, or conversion, if any there was, was done with a fraudulent intent, and if defendant had the intention to merely temporarily use the vendor’s lien note in question, without any intention to defraud, or if you have a reasonable doubt as to this, then you should acquit the defendant.”

This is properly reserved in both ways, by bill of exceptions and in motion for new trial. The contention of appellant is that this charge was demanded by the evidence and was the defendant’s defensive theory, and called the court’s attention to the necessity of presenting a correct and affirmative charge on his defensive theory, and the court having omitted in his main charge to give any charge presenting his defensive theory, the refusal to give this charge was prejudicial error, and should be held to be sufficiently so to be reversible. .The bill of exceptions sets out the contention of the parties. We are of opinion this charge should have been given. Appellant testified that his intention was to use the note only temporarily and without any idea of defrauding Perry; that he knew the note was of no value, and was an accommodation notei.i which was corroborated by other testimony, and nowhere did the court affirmatively present his defensive theory. It is a fundamental proposition that wherever a defensive theory is presented by the record, the defendant is entitled to a distinct and affirmative presentation of that issue, in order to prevent the jury from ignoring his defense and conduct them to a proper verdict if they find his evidence to be true or there was a reasonable doubt of it. See the following authorities: Reynolds v. State, 8 Tex. App. 412; Greta v. State, 9 Tex. App. 429; Jackson v. State, 15 Tex. App. 84; White v. State, 18 Tex. App. 57; Burkhard v. State, 18 Tex. App. 599; Irvine v. State, 20 Tex. App. 12; Bond v. State, 23 Tex. App. 180, 4 S. W. 580; Smith v. State, 24 Tex. App. 290, 6 S. W. 40; Williams v. State, 24 Tex. App. 342, 6 S. W. 531; Thompson v. State, 24 Tex. App. 383, 6 S. W. 296; Hones v. State, 8 Tex. App. 112; Erwin v. State, 10 Tex. App. 700; Ainsworth v. State, 11 Tex. App. 339; Neyland v. State, 13 Tex. App. 536; Bonner v. State, 29 Tex. App. 223, 15 S. W. 821; Nalley v. State, 30 Tex. App. 456, 17 S. W. 1084; Hays v. State, 30 Tex. App. 472, 17 S. W. 1063; Carter v. State, 30 Tex, App. 551, 17 S. W. 1102, 28 Am. St. Rep. 944; Hargrove v. State, 33 Tex. Cr. R. 431, 26 S. W. 993; Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913; Wright v. State, 35 Tex. Cr. R. 470, 34 S. W. 273; Carver v. State, 36 Tex. Cr. R. 552, 38 S. W. 183; Winters v. State, 37 Tex. Cr. R. 582, 40 S. W. 303; Taylor v. State, 50 Tex. Cr. R. 379, 97 S. W. 473; Mortimore v. State, 60 Tex. Cr. R. 69, 130 S. W. 1004; Carden v. State, 59 Tex. Cr. R. 501, 129 S. W. 362; Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282; Treue v. State, 44 S. W. 829; Strickland v. State, 47 S. W. 471; Driver v. State, 48 Tex. Cr. R. 20, 85 S. W. 1056; Golightly v. State, 49 Tex. Cr. R. 45, 90 S. W. 26, 2 L. R. A. (N. S.) 383, 122 Am. St. Rep. 779, 13 Ann. Cas. 827; Freeman v. State, 52 Tex. Cr. R. 500, 107 S. W. 1127; Cain v. State, 49 Tex. Cr. R. 360, 92 S. W. 808; Dyerle v. State, 68 S. W. 175; Sowell v. State, 32 Tex. Cr. R. 482, 24 S. W. 504; Henderson v. State, 1 Tex. App. 437; Harris v. State, 51 Tex. Cr. R. 564, 103 S. W. 390; Scott v. State, 153 S. W. 871.

Appellant testified that he had no intention of defrauding Perry or permanently depriving him of the note; that he thought he would use it temporarily and return it to him when necessary; that Hill had told him it was an accommodation note; he knew it was an accommodation paper; that Perry had not sold the property; that he deposited the note with Mr. Goree simply to get temporary relief; that the note was of no value. There is evidence, not only by appellant but other testimony, to the effect that the note was an accommodation note. It seems to be uncontroverted, shown by the state as well as defendant’s evidence, that the property for which this note was given had an existing debt hanging over it for $13,000. This note was for $8,000, and the value of the property covered by these liens was $10,000 or less. It was in evidence that Hill was a carpenter, employed by Perry at $3.50 a day, and that Hill executed this note to Perry for this $8,000 on the property above mentioned. Appellant testified he had it from Hill that it was an accommodation note, and he knew as a matter of fact himself it was an accommodation note. Appellant testified, and some of the facts we have already detailed show he was sustained to some extent in stating, he was only temporarily using'the note with Goree to prevent Goree bringing suit against him in favor of the Washington County Bank, and the evidence further shows that he was financially pressed at the time, and that a suit at that time might be of very serious consequences to him, and by using this note he could temporarily stave off litigation and in the meantime gather his financial matters together and relieve some of his outstanding paper or property and take up and substitute 'the note with Goree in place of the note he used with Goree. In all cases where it was an issue as to whether the property was used temporarily or converted permanently, it is the duty of the court to submit the issue to the jury. It is further the rule under all the cases, so far as we are aware, that where the property is only temporarily used and not a permanent deprivation, then it would not be theft, and if the jury believed defendant’s side of the case under such circumstances, he would be entitled to an acquittal. The court charged the state’s side of it, but refused to give the defendant’s side of it. A list of some of the authorities bearing upon the temporary use will be found collated in Branch’s Criminal Law, § 798. On the question of intent see Branch’s Crim. Law, § 779. In Taylor’s Case, 50 Tex. Cr. R. 379, 97 S. W. 473, in regard to this phase of the law, this court said:

“Where the state seeks a conviction, whether under the general statute of theft or under that making the conversion by bailee theft, the fraudulent appropriation and the intent to deprive the owner of the property must exist at the time of the taking, or at the time of the conversion, as before stated. Under the general statute the fraudulent intent is coexistent with the taking. Under the statute in regard to conversion by the bailee, it must coincide with the act of conversion. Under both statutes the fraudulent intent to appropriate permanently must necessarily exist. If appellant borrowed the money on the ring with the intent and purpose to redeem the ring, this would seem to exclude the idea of a fraudulent intent to permanently deprive the owner of the property, if not of a fraudulent intent altogether.”

In the case of Carden v. State, 59 Tex. Cr. R. 501, 129 S. W. 362, the same doctrine was laid down in regard to threats, although they were denied, yet the defendant was entitled to a charge submitting Ms theory of the case.

In Freeman v. State, 52 Tex. Cr. R. 500, 107 S. W. 1127, appellant testified to a certain state of facts, which statement was contradicted by prosecutrix. The court failed to charge with reference to appellant’s defense, which was that his intentioSn was not to assault the girl, but merely to secure from her the ring. The court said in that case:

“This was appellant’s affirmative defensive theory, and one he supported by his testimony. We are of opinion this charge should have been given. It is fundamental in this state that the charge must distinctly set forth the law applicable to the case, and this must be determined by the evidence adduced. * * * It is fui'-ther a fundamental proposition of law that the charge must embrace the law applicable to every phase of the case made by the evidence and every legitimate deduction to be drawn therefrom. * * * The fact that the evidence may be such as the court may believe untrue will not change this rule. Under our system the jury constitute the judges of the facts, credibility of the witnesses, and the weight to be given their testimony. It is also equally as well settled in this state, that the accused is entitled to a distinct and affirmative, and not merely an implied or negative, presentation of the issues which arise upon his evidence, in order to prevent the jury from ignoring his defense, and to conduct them to a proper verdict if they find this evidence to be true.” Taylor v. State, 50 Tex. Cr. R. 379, 97 S. W. 473; Cain v. State, 49 Tex. Cr. R. 860, 92 S. W. 808; Dyerle v. State, 68 S. W. 175; Sowell v. State, 82 Tex. Cr. R. 482, 24 S. W. 504; Henderson v. State, 1 Tex. App. 437; Harris v. State, 51 Tex. Cr. R. 564, 103 S. W. 390; White v. State, 18 Tex. App. 57; Scott v. State, 153 S. W. 871.

It may not be necessary to cite further authorities on this proposition; at least it would seem to be unnecessary. The fraudulent intent at the time of the conversion is the gist of the offense, and in theft or embezzlement there must be a fraudulent intent to permanently and not temporarily take or convert the property. Taylor v. State, 50 Tex. Cr. R. 379, 97 S. W. 473; Mortimore v. State, 60 Tex. Cr. R. 69, 130 S. W. 1004; Branch’s Criminal Law, on Temporary Use, § 798, and on Intent, § 779, for collation of other authorities.

After the jury had been out for about 17 hours, specifically mentioned in the bill of exceptions, they were recalled by the court, and the following charge given:

“You are instructed that an accommodation note placed in the hands of an innocent third person, for value without notice, is just as binding and valid as if consideration had passed from the maker to the payee at the time the note was made, and could be enforced against the maker and indorsers in the hands of innocent third persons without notice just the same as though it was a bona fide transaction.
“You are further instructed that the original of a note that has been substituted in the hands of innocent third parties for value without notice is a valid and binding obligation on the maker and indorser, although the maker may have executed a substitute for the origin'al.
“You are further instructed that in arriving at the value of the note introduced in evidence you may take into consideration all of the facts and circumstances adduced before you, and that the question to be decided by you, as to the value of the note, is its value at the time the same was converted or misapplied by the defendant, if you find beyond a reasonable doubt that it was fraudulently misapplied or converted, and not its value at any subsequent time.”

We are of the opinion the contention is correct; that this charge should not have been given. There were many exceptions taken and reasons assigned why this charge was wrong. This charge presented only the theory of the state and, in our judgment, more favorable to the state than it was entitled to have. The court by this charge made the criterion of value, so far as appellant was concerned, in the hands of innocent third parties, and absolutely eliminated all of his defensive theories, and it was a charge on the weight of evidence. It is a correct proposition of law that an accommodation note in the hands of innocent third parties is available; that is, it is not subject to the want of consideration, as it is in the hands of parties with notice of its character as an accommodation paper. There was evidence, not only from appellant but from other sources, adduced on the trial, sustaining him to the effect that this was an accommodation paper, and that appellant knew. it. Of course, the law is too well settled for discussion that, in the hands of the parties to the accommodation transaction the paper would be valueless. Appellant was the agent of Perry, one of the parties to the note, and for the double reason that he was agent for Perry atad stood in his shoes in disposing of the paper, acting as his agent, and positively knew, at least so testifies, that the paper was an accommodation paper, this charge was erroneous. Whatever he did with the paper as the agent of Perry would be Perry’s act. He stood in Perry’s shoes, atad so far as his holding the paper is concerned he was Perry’s agent. If he had stolen Perry’s note from Perry with knowledge of its want of value, he would not have stolen anything. If at the time he converted it it was valueless, he had not embezzled anything. It is sometimes a little difficult to fix upon a fact or the facts which show the fraudulent taking or conversion in embezzlement. But wherever that fact exists ita embezzlement would be the conversion. If appellant converted it from Perry as the indictment charges, then he converted a paper that he knew to be an accommodation paper, or believed to be an accommodation paper, and which the facts would justify the jury ita believing was an accommodation paper. He converted it as the agent of Perry; therefore it wa? Perry’s property when he con-vertéd it. He is not charged with swindling Goree, but it charged with embezzling Perry’s property. The court’s charge would indicate to the jury, and seems to have been to so instruct them that they should fix appellatat’s guilt, so far as the value of the paper is concerned, in the hands of Mr. Goree. The court does not even charge the converse of the proposition. Appellant, as before stated, was charged with embezzling Perry’s property. Pie is not charged with embezzling it after it got into the hands of third parties, nor could they fix the criterion in the hands of innocent third parties as the criterion of value in the hands of Perry, for whom appellant was the agent and whose property he is alleged to have embezzled. Appellant did not obtain a cent, and Perry lost nothing.

There is another question1 in this phase of the case. There is evidence all through the record that the note was valueless, and there is evidence of the fact that Mr. Perry virtually agreed to all appellant did and had knowledge of it. 'Taub testifies he apparently knew it, and was not surprised when told of the condition of things, and Goree testifies to the same thing, and appellant testifies he thought it was all right with Perry; that he had been in the habit of handling Mr. Perry’s collateral notes, and Perry did not express any surprise at it, and went with appellant to Goree and executed with appellant another note and took up the ?8,000 note in question and canceled it. Goree said he canceled it. Perry testified that he canceled it. This charge, we think, is wrong from another standpoint. It fixes the value in the hands of innocent third parties, and not in the hands of Perry through his agent, appellant. If - appellant had stolen this note, there is no question of the fact it would have been valueless, because he would have been stealing a paper from Perry that he and Perry knew at the time was valueless, and embezzlement is but a different form of theft; at the time of conversion the •property must have a value. Appellant makes the contention that where the value is necessary to be alleged, it is necessary to prove, and the evidence must show some specific value, and in this case the state has failed, in our judgment, to prove the value of the note; that it was worth $60 or over, or in fact of any value. We are of opinion that this contention is correct. We are of opinion that the passing óf the note by appellant to Goree did not enhance the value of the note that belonged to Perry; it did not lend any value to Perry’s alleged property. The passing of the note into the hands of Goree, conceding that he was not acquainted with the fact that it was an accommodation paper, might have created an obligation against Perry, but would hardly be thought to make the note available as Perry’s property. The creation of an obligation against Perry does not constitute embezzlement. Appellant received no consideration for leaving the note with Goree, outside of. an extension of time, or rather Mr. Goree’s promise not to sue. There was no money passed; there was no value shown. Nothing had passed to appellant from Mr. Goree except a promise not to sue. Appellant simply had an extension of the debt for which he was guarantor; he received nothing which he could convert. If appellant had sold Goree the note for cash consideration and retained the money for his own use, he woul'd not have been guilty of embezzling the note. lie may perhaps have been guilty of swindling Mr. Goree, or possibly of embezzling the proceeds of the note, but not of embezzling the note itself.

Appellant also makes another contention, which seems to us to be sound, that the state failed to prove that the note was ever of any value either in the hands of Perry, appellant, or Goree. The facts show conclusively that Hill was insolvent. It would hardly be thought that any man with any business qualification and accountability financially would lend his name to Perry, as the record shows this man 1-Iill did, under the circumstances. In fact it is shown that Hill was simply a carpenter, working for wages at $3.50 a day, and the circumstances show Perry was fully bankrupt and was floating fictitious loans in order to keep up his financial schemes. The security upon which the note was based was worth nothing so far as this note is concerned. While Perry said it was worth $10,000, yet it is shown, and by Perry himself, that there was a $13,000 first lien upon it besides the $8,000 note mentioned in the record, but his testimony goes to show that after he got rid of those accommodation liens he sold the property for $8,000. So it will be seen the property fell $5,000 short of releasing the first lien security. Mr. Taub testifies, and from this record he seems to be a responsible business man, that the note “was not worth eight cents, that it was worth nothing.” Taub knew of the property and knew Perry and doubtless knew Hill; at least his testimony shows he was familiar with those transactions. Besides this testimony, all the circumstances of the -case, even the evidence for the state, indicates but one safe conclusion, it occurs to us, that is, that the note, upon any theory of this evidence from which it may be considered, was worthless, and the state, instead of proving beyond a reasonable doubt any specific value of the note, absolutely disproved it. It may be Mr. Perry and Mr. Pye were running these matters together. The testimony .rather indicates that Perry was indulging in some pretty extravagant financial transactions without much backing to it, and that Pye was familiar, at least to some extent, with those facts, and that he had assisted Mr. Perry in these matters, handling his, Perry’s, collateral, and this accounts for the reason why Mr. Perry was not surprised at the transaction between Pye and Goree, and all these other matters that have cropped out in the evidence, and if those facts exist, the evidence would strongly indicate from that standpoint Pye had authority, or was justified in believing he had authority, to handle the property and do with it as he pleased. This phase of the ease, however, was not submitted to the jury. Under all the circumstances of this case it may be a serious question whether the state has a case to show embezzlement by Pye of Perry’s property of any amount, that is, that the note was valueless, and any conversion by Pye of a valueless piece of paper could not be embezzlement because of a want of value.

For the reasons indicated the judgment is reversed, and the cause is remanded.

HARPER, J.

While agreeing to the reversal of the case, I do not concur in that part of the opinion holding the indictment defective, but hold that the indictment is not invalid.

I do not agree that the court should have submitted the issue of temporary appropriation. The testimony shows that Pye hypoth-ecated the note with Goree and placed it beyond his (Pye’s) control, and Perry had to substitute other collateral to secure the release of the note owned by him and which Pye had appropriated to his own use, and think the evidence of Perry having to pay $500 was admissible on two phases of the testimony: First, as tending to show the value of the $8,000 note at the time of its appropriation; and, secondly, if there was any evidence tending to show a temporary appropriation, then this was a cogent circumstance to prove a permanent appropriation that Perry first had to put up other collateral to get the $8,000 note appropriated by Pye released, and then to get this collateral released he had to pay $500. There are other matters that might be mentioned, but, agreeing with the conclusion reached, I concur in a reversal of the case, especially on the grounds that, whether or not Perry knew at the time Pye appropriated the note and consented thereto, and, secondly, if the dealings between the parties were such as to lead Pye to believe he had Perry’s permission to use the property, then this issue should have been submitted to the jury.

PRENDERGAST, J.

In my opinion the indictment is good. I think the trend of all the later cases is to that effect. It seems to me from the statement of the case by Presiding Judge DAVIDSON that it must be reversed. The time for adjournment for this term of court is so near at hand, and there being so much other pressing business necessary to be disposed of before adjournment, precludes a special study of this case now. At a later date, even if the reversal stands, we may write further herein on the various questions arising and necessary to be decided herein. It may be upon a thorough consideration we may reach the conclusion the case should not be reversed.


source: Caselaw Access Project

author: HARPER, J. HARPER, J. HARPER, J.

license: Public Domain

text:
    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.)
    1. Receiving Stolen Goods (§ 7) — Requisites of Indictment — Time and Place of Original Taking.
    An indictment for receiving stolen property knowing that it had been stolen and bringing it into this state need not allege the time and place of the original taking, though it must allege that it was fraudulently received and concealed with knowledge that it had been acquired by theft, and the name of the owner, if known, and the name of the person from whom received.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. § 7-]
    2. Receiving Stolen Goods (§ 7) — Indictment — Proof and Variance.
    Under Pen. Code 1911, art. 1431, providing that any person receiving stolen property in another state knowing it to have been stolen, and bringing it into this state, shall be guilty of receiving stolen property, an allegation in an indictment for the offense that the property was received “in the county of St. Louis,” was not an element of the offense, and would be disregarded as surplusage; and, even if a descriptive averment necessary to be proved, and even if the city of St. Louis, in which it was received, was a municipality separate from the county of St. Louis, proof that the city was always considered as a part of the county was not a variance, but sufficiently sustained the descriptive averment.
    [Ed. Note. — For other cases, see Receiving ■ Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. § 7.

    For other definitions, see Words and Phrases, First and Second Series, Receiving1 Stolen Goods.]
    3.Indictment and Information (§ 60) — Requisites and Sufficiency — Statute.
    If, eliminating surplusage, an indictment so avers the constituent elements of the offense as to apprise the defendant of the charge against him and to enable him to plead the judgment in bar of another prosecution, it is good in substance under the Code, and therefore sufficiently charges the offense.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 182, 266, 267; Dec. Dig. § 60.]
    4.Criminal Law (§ 80) — Trial—Principal and Accessory.
    Pen. Code 1911, art. 90, expressly requiring that where a principal is arrested he shall be tried before the accessory, is special and controls the general provisions of Code Cr. Proc. 1911, art. 727, relating to the severance on trial of defendants, and hence one indicted as an accessory cannot be first tried.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 103-111, 1384; Dec. Dig. §
    5. Criminal Law (§ 1119) — Appeal—Presumption.
    On appeal the legal presumption is that the court ruled correctly, and to have the refusal of a severance reviewed, the bill must state masters as to arrest, trial, and continuance which would show error in the ruling.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2927-2930; Dec. Dig. § 1119.]
    6.Indictment and Information (§ 132)-— Election of Counts — Trial.
    In a trial of an indictment for bringing stolen goods into the state charging only one transaction by different counts, the state was not required to elect upon which count it would ask for a conviction.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425 — 447, 449-453; Dec. Dig. § 132.]
    7. Criminal Law (§ 400) — Evidence—Best and Secondary Evidence.
    In a prosecution for bringing stolen property into the state testimony of one of the company alleged to have been the original owner that it was a corporation was admissible as a fact that the witness personally knew.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 879-886, 1208-1210; Dec. Dig. § 400.]
    8. Criminal Law (§ 1091) — Appeaj>-Bill of Exceptions.
    A bill of exceptions to evidence is too general for consideration, where it includes a number of statements, some of which are clearly admissible; and there is nothing in the objection pointing out specifically the supposed objectionable parts of the evidence.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2803, 2S15, 2816, 2818, 2S19, 2S23, 2824, 2828-2833, 2843, 2931-2933, 2943; Dec. Dig. § 1091.]
    9.Criminal Law (§ 422) — Evidence—Acts and Declarations of Conspirators.
    In a prosecution for bringing stolen property into the state, the statements and acts of all the conspirators during the pendency of, and in furtherance of, the common design to convert the goods to their use, such as its division, etc., were admissible against' another, though said and done in his absence.
    [Ed. Note. — Eor other cases, see Griminal Law, Cent. Dig. §§ 984-988; Dec. Dig. § 422.]
    10. Receiving Stolen Goods (§ 6) — Elements of Offense.
    To constitute the offense of bringing stolen goods into the state, it was not necessary that defendant himself should ship the goods, as if he was the procuring cause, he would be legally responsible for bringing them into the state.
    [Ed. Note. — Eor other cases, see Receiving-Stolen Goods, Cent. Dig. ■§ 8; Dec. Dig. § 6.]
    11. Receiving Stolen Goods (§4) — Possession of Owner.
    In a prosecution for bringing stolen goods into the state, the fact that one in charge of the corporation, alleged to be the original owner of the property, had employed a drayman to carry the goods to the depot from which they were stolen did not take them out of his possession.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Century Dig. § 0; Decennial Dig. § 4.]
    12. Criminal Law (§ 829) — Requested Instructions — Given Instructions.
    ■A requested charge covered by the main charge was properly refused.
    [Ed. Note. — Eor other cases, see Criminal Law, Cent. Dig. § 2011; Dec. Dig. § 829.]
    13. Grand Jury (§ 36) — Witnesses — Attendance-Evidence Before Grand Jury.
    Witnesses need not be personally before the grand jury as examining trials are had, testimony taken, reduced to writing, and sworn to and transmitted to the grand jury, which is authorized to return an indictment thereon if found sufficient.
    [Ed. Note. — For other cases, see Grand Jury, Cent. Dig. §§ 75-78; Dec. Dig. § 36.]
    14. Receiving Stolen Goods (§ 8) — Sufficiency of Evidence.
    In a prosecution for bringing stolen goods into the state, evidence held to show that defendant received the goods from the persons named in the indictment.
    [Ed. Note. — For other eases, see Receiving Stolen Goods, Cent. Dig. §§ 15-18; Dec. Dig. § 8.]
    On Motion for Rehearing.
    15. Receiving Stolen Goods (§ 7*) — Indictment — Theft.
    Under Pen. Code 1911, art. 1431, providing that if any person has committed an offense in another state which, if committed in this state, would be the receiving of stolen property knowing it to have been stolen, shall bring it into this state he shall be guilty of receiving stolen property, and article 1432, providing that it must' appear that the offense charged would also have been receiving stolen property under the law of the other state, it was not necessary that an indictment, specifically alleging that the acts of accused under the laws of Missouri constituted the offense of receiving stolen property, allege the facts going to constitute theft by the original taker from whom the property was received.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 9-14; Dec. Dig. §’ 7.]
    16. Indictment and Information (§ 60)— Purpose of “Indictment.”
    The office and purpose of an “indictment” is. to notify one^ of the offense with which he is. charged, and the elements thereof, that he may properly prepare his defense, and usually 1 when an offense is charged in the language of the statute, it is sufficient.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 182, 266, 267; Dec. Dig. § 60.

    For other definitions, see Words and Phrases, First and Second Series, Indictment.]
    17.Receiving Stolen Goods (§ 9) — Issues —Original Taking.
    In a prosecution for bringing stolen goods into the state knowing them to have been stolen, where there was evidence that defendant was at a certain place in the other state with the original taker' of the goods and admitted that they had crooked goods, and .that the original taker resided in the other state, had the reputation of being a professional thief, and had been convicted of similar thefts, while defendant resided in Texas, the refusal to submit a count charging defendant with theft of the goods and the submission of that adjudging him with receiving stolen goods knowing them to be stolen goods, was proper.
    [Ed. Note. — For other cases, see Receiving Stolen Goods, Cent. Dig. §§ 19-22; Dec. Dig. § 9.]
    Davidson, P. J., dissenting.
    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.

      For other cases see same topic and section NUMBER in Dec. Dig..& Am. Dig. Key-No. Series & Rep’r Indexes,

   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 tbe aforesaid property into tbe state of Texas and into tbe county of Milam.”

We baye copied tbe indictment because many of tbe contentions of appellant are based tbereon.

Tbe first complaint is that tbe count in tbe indictment is insufficient because it fails to allege tbe date that Lefty Linnaman and others committed tbe tbeft. While appellant says in his brief be has been unable to find any authorities on this question, yet be earnestly insists that it is essential that tbe date of tbe original -theft shall be stated. By reading tbe indictment it is seen that appellant is prosecuted for receiving stolfen property knowing that it bad been stolen and bringing it into this state. Whether or not it is necessary in an indictment charging ODe with receiving stolen property, to allege tbe date of tbe original theft is no new question in this state. When tbe Supreme Court had jurisdiction in criminal matters this question was before them in tbe case of State v. Perkins, 45 Tex. 10, and they held that it was unnecessary to allege “the time and place of tbe original taking,” citing Bishop’s Crim. Proc. § 928. And since the creation of this court, in tbe case of Brothers v. State, 22 Tex. App. 447, 8 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. Prae. (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 bis motion to quash, and •which decide all of them adversely to him.

A serious question in tbe case is that, tbe state having alleged that appellant received tbe stolen property “in tbe county of St. Louis,” tbe proof must show that be received tbe property in that county. Is this an essential allegation in tbe 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 tbe words in tbe “county of St. Louis,” not being an element of the offense (for it was wholly unnecessary to allege in what county in Missouri tbe property was received, as, held by all tbe authorities), in any way descriptive of tbe identity of what is legally essential to tbe charge contained in tbe indictment? In tbe case of Mayo v. State, 7 Tex. Cr. App. 346, tbe question of what is descriptive of the offense and what may be treated as a surplus allegation is discussed at length, and tbe 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; Boscoe’s Cr. Ev. 82.”

Tested by this rule, tbe words “county of St. Louis” may be rejected as surplusage, and still all tbe elements would be charged and tbe indictment would be so definite that appellant could successfully plead it in bar of any subsequent prosecution for this offense. In tbe case of Clark v. State, 41 Tex. Cr. R. 641, 56 S. W. 621, Presiding Judge Davidson aptly states tbe 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. Hep. 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 [12 S. W. 1010]; Hammons v. State, 29 Tex. App. 445 [16 S. W. 99]; Taylor v. State, 29 Tex. App. 466 ri6 S. W. 302]; Lomax v. State, 38 Tex. Cr. R. 318 [43 S. W. 92].”

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 questions raised by objecting to testimony in regard thereto, nor the special charges asked in relation solely to that question. The gist of the offense in this character of case is the bringing of the stolen property into this state, and it was not essential to allege in what county it was received, and if we should be mistaken in the holding that it was not a “descriptive averment” necessary to be proven, and it should be held to be such a descriptive averment as it must be proven as alleged, then an allegation of that character may be proven by facts which would show that it was generally so spoken of and understood. If it be conceded that the laws of the state of Missouri, introduced in evidence, show that the city of St. Louis is a separate and distinct municipality from the county of St. Louis, yet the same evidence shows that the city of St. Louis is wholly surrounded by the county of St. Louis, and if we are to give credence to the testimony adduced on the trial, it has always been spoken of and considered a part of the county of St. Louis. While it may be said that the laws of the state of Missouri give to the city an independent political existence, yet these same laws show that the city of St. Louis is wholly within the territorial bounds of the county of St. Louis, it being carved out of that county, and the limits of the county entirely surround the city of St. Louis. It is by the record shown that in the city of St. Louis it is generally spoken of and described as within the county of St. Louis. By all the testimony it is shown that the goods were stolen in the city of St. Louis, and Mr. Sanders testified:

“Those goods were taken from me in the county of St. Louis and State of Missouri without my consent.”

Frank McKenna testified that the city of St. Louis was within the bounds of the county of St. Louis, and was always spoken of as being within that county. In fact outside of the bare fact that laws of the state had carved out a part of the county of St. Louis and had given it to some extent at least a separate and independent political existence, the record would disclose that it is always spoken of and generally understood to be within the county of St. Louis. And if it should be held that, having stated the goods were stolen from Sanders Duck & Rubber Company in the county of St. Louis, it became a descriptive averment and must be proven as alleged, then it has always been the rule in this state that a descriptive averment of this character may be sustained by proof that it is usually so spoken of and understood. Dignowitty v. State, 17 Tex. 531, 67 Am. Dec. 670, and cases cited in Roman v. State, 64 Tex. Cr. R. 515, 142 S. W. 913. In Mr. Underhill’s work on Criminal Evidence, the rule is said to be:

“The strict technical rules formerly governing this subject have been greatly relaxed, if not altogether abrogated, by statutory enactment or by the liberal spirit of the modern courts of criminal jurisdiction. In determining whether a variance is material, the question to be decided is, does the indictment so far fully and correctly inform the defendant of the criminal act with which he is charged that, taking into consideration the proof which is introduced against him, he is not misled in making his defense, or placed in danger of being twice put in jeopardy for the same offense?”

In this case it can be positively said that appellant could not have been misled in making his defense, and he would certainly be able to plead this prosecution in bar of any subsequent prosecution for the offense. So if we are mistaken in holding that the words “county of St. Louis” were not necessary to be alleged to constitute the offense, and could and should be treated as sur-plusage, then we think such an allegation can be proven by evidence that it was so called, termed, and spoken of, and in either event the court did not err in the premises.

Appellant next complains of the action of the court in overruling his application for a severance. The application nor the bill reserved, does not make manifest that Henry Zweig had ever been arrested, nor that he was willing to be first tried; nor was it shown whether Henry Zweig had been indicted as an accomplice, principal, or accessory to the offense, nor that granting same would not have resulted in a continuance. If he was indicted as an accessory to the offense, this court has held that under the law he could not be first tried. In Williams v. State, 27 Tex. App. 471, 11 S. W. 481, we held:

“It was not error to refuse the defendant’s motion to put John West upon trial before trying the defendant. Said West was indicted as an accessory to the theft charged against the defendant, and it is expressly provided that where ‘the principal is arrested he shall be first tried.’ Pen. Code, art. 90. The defendant being the principal, and under arrest, it was not only proper, but obligatory upon the court, to try him first. This requirement of the statute is special and controls the general provision relating to the severance on trial of defendants. Code Crim. Proc. art. 669a.”

As said by this court in Edgar v. State, 59 Tex. Cr. R. 256, 127 S. W. 1053, on appeal the legal presumption is that the court ruled correctly, and to have the matter revised by us on appeal, the bill must state matters which would show the error in the ruling of the court. If Henry Zweig was under arrest, and willing to be tried, and to have granted the application would not have worked a continuance, and the indictment against him did not charge him with being an accessory, these facts should have been shown, in order to avail appellant of this ground in the motion for new trial. For correct rule in regard to these matters see Ortiz v. State, 151 S. W. 1058, and cases there cited.

There was no error in the court refusing to make the state elect under which count in the indictment he would ask for a conviction at the close of the testimony offered in behalf of the state. In section 300 of Branch’s Crim. Law he correctly states the rule to be: .

“If only one transaction is charged, and different counts are contained in the indictment to meet the possible phases the testimony may assume, the state will not be required to elect” (citing Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597, and numerous other cases, which will be found noted in that section).

In bill of exception No. 1 it is shown that appellant objected to the witness H. A. Sanders testifying that the Sanders Duck & Rubber Company was a corporation. As no effort was made to show for what purposes the company was incorporated, but merely the fact that it was an incorporated company, the court did not err in the matter. This was a fact that the witness personally knew.

In bill No. 9 is set out the testimony of this witness almost in full, covering some 12 pages of the record, at the conclusion it being stated that the objections were that the witness was “incompetent to testify as to the identity of the goods alleged to have been obtained as shown by his testimony.” Mr. Sanders testified that he was able to identify the goods found as the goods stolen from him; and, while appellant might contend that his cross-examination weakened that statement, yet this would go to the credit of the witness and not the admissibility of the testimony. As stated in Ortiz v. State, 151 S. W. 1057:

“A bill of exceptions is to general for consideration if it includes a number of statements, some of which are clearly admissible, and there is nothing in the objection * * * pointing out the supposed objectionable portions of the evidence” (citing Branch’s Orim. Law. § 47, and numerous authorities).

And the same might be said as to the testimony of M. Bourlandt, which covers some eight pages of the record, at the last the objection being stated, “for the reason that the testimony in reference to statements made by Henry Zweig not in the presence of defendant were not admissible against appellant.” ^

we will state that the record disclosed that appellant, Henry Zweig, and Bourlandt were in business as partners at Cameron, Milam county; that if the state’s theory is correct, appellant was in St. Louis and shipped the alleged stolen goods from St. Louis to an address in Taylor, Tex.; at the suggestion of Henry Zweig, Bourlandt went to Taylor, paid the freight, and reshipped the goods to Zweig & Bourlandt at Cameron; that the goods were there received, and by Henry Zweig and Bourlandt, and when they learned that they were likely to be caught in possession of the goods, they sought to con-conthem; that appellant then came to Cam-Camand reshipped the goods to another point, where they were finally discovered and identified as the stolen goods by Mr. San-SanThe statement of all the conspirators during the pending of the conspiracy is al-aladmissible in evidence, and, as it is shown that the conspiracy to convert these goods to the use of appellant, Henry Zweig, and Bourlandt was not completed, and, when it was learned that the theft was about to be discovered, it was sought to conceal the goods, the statements of each and all the con-conwere admissible, and the court did not err in admitting the statements of Henry Zweig which he did admit. In Branch on Crim. Law, § 240, it is said:

“Acts and declarations of one conspirator in furtherance of the common design are admissi-admissiagainst another conspirator pending the conspiracy and until its final termination. This proposition includes anything that was within the contemplation of the conspiracy, such as dividing the spoils, or any of those matters that may be subsequent to, but included in, the scope of the conspiracy. O’Neal v. State, 14 Tex. App. 582; Rix v. State, 33 Tex. Cr. R. 353, 26 S. W. 505; Franks v. State, 36 Tex. Cr. R. 149, 35 S. W. 977; Small v. State, 40 S. W. 790; Long v. State, 55 Tex. Cr. R. 57, 114 S. W. 632; Gracy v. State, 57 Tex. Cr. R. 68, 121 S. W. 706; Milo v. State [59 Tex. Cr. R. 196] 127 S. W. 1028; Kipper v. State, 45 Tex. Cr. R. 384, 77 S. W. 611; Holt v. State, 39 Tex. Cr. R. 299 [45 S. W. 1016] 46 S. W. 829; Eggleston v. State [59 Tex. Cr. R. 542] 128 S.. S. 1111.
“What is said and done by any of the conspirators, pending the conspiracy and in furtherance of the common design; is admissible against the one on trial, though said and done in his absence. Wallace v. State, 46 Tex. Cr. R. 349, 81 S. W. 966; Barber v. State, 69 S. W. 515; Trevino v. State, 41 S. W. 609; Dobbs v. State, 51 Tex. Cr. R. 115, 100 S. W. 946; Roma v. State, 55 Tex. Cr. R. 344 [116 S. W. 598]; Smith v. State, 21 Tex. App. 96, 17 S. W. 560; Armstead v. State, 22 Tex. App. 59, 2 S. W. 627; Richards v. State, 53 Tex. Cr. R. 400 [110 S. W. 432; Bowen v. State, 47 Tex. Cr. R. 137, 82 S. W. 520]; Williams v. State, 45 Tex. Cr. R. 240, 75 S. W. 509; Chapman v. State, 45 Tex. Cr. R. 484, 76 S. W. 477; Hannon v. State, 5 Tex. App. 551; [Taylor v. State] 3 Tex. App. 200; Moore v. State, 15 Tex. App. 1; [Phelphs v. State, 15 Tex. App. 55]; Eggleston v. State [59 Tex. Cr. R. 542] 128 S. W. 1111.”

It was not necessary that appellant himself should ship the goods from Taylor to Cameron. If he was the procuring cause to have the goods shipped from St. Louis to the address at Taylor, and his partners, or one of them at his instance, reshipped the goods from Taylor to Cameron, he would be legally responsible for the act of bringing the goods into Milam county, and the court did not err in refusing special charge No. 2 on this phase of the case.

Mr. Sanders testified that he was in charge of the corporation and its property. The fact that he employed a drayman to carry them to the depot from which place they were stolen- would not take them out of his possession. The possession of the drayman, under such circumstances, was temporary, and they remained in Sanders’ possession until delivered to the railway company, and the court did not err in refusing the special charges in regard to such possession.

Special charge No. 7 was covered by the court’s main charge; therefore it was unnecessary to give it.

Under the evidence in this case special charge No. 8 was not called for. Appellant apparently proceeds on the theory that the witnesses must be personally before the grand jury. This is not the law. Examining trials are held, and testimony taken, reduced to writing and sworn to, which is transmitted to the grand jury. The grand jury is authorized to return an indictment on this testimony if they deem it sufficient, and the evidence shows the testimony adduced at the examining trial was before the grand jury and considered by them.

' It may be said that the evidence relied on by the state to prove that appellant received the goods from the persons named in the indictment is circumstantial. The court gave a full and fair charge on circumstantial evidence, and the circumstances would fully authorize the jury to find appellant guilty under the second count in the indictment. The circumstances would show appellant in possession of these goods in Mayer Katz’s yard, boxing them for shipment; they are shipped from St. Louis, and placed in his store in Cameron, and when he ascertains search is being made for them, he in person ships a portion of them away from Cameron to avoid detection.- Lefty Linnaman is. placed in such juxtaposition to appellant as authorized a finding that he was the person from who.m appellant received the goods.

We have carefully reviewed each bill of exceptions, and ground in the motion for new trial, and are of the opinion that the court properly submitted the case on circumstantial evidence, and the evidence is amply sufficient to support the verdict.

The judgment is affirmed.

DAVIDSON, P. X, dissents.

On Motion for Rehearing.

HARPER, J.

On motion for rehearing it is insisted that, as the second count in the indictment, charging appellant with receiving stolen property and bringing same into this state, did not allege that the manner Lefty Linnaman had obtained the goods constituted theft under the laws of the state of Missouri, and the same acts would constitute theft under the laws of this state, this count in the indictment is for that reason fatally defective. Receiving property known to have been stolen, and bringing same into this state is a separate and distinct offense from the original taking, and it will be noticed in the original opinion that this count in the indictment does allege that goods had been acquired in such manner as the acquisition of the same came within the meaning of the term “theft,” and—

“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 lotos 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.”

Article 1431 of the Penal Code of 1911 provides if any person, having committed an offense in a foreign country, state, or territory which if committed in this state would have been receiving of stolen property knowing the same to have been stolen, shall bring into this state any property so received, he shall be deemed guilty of receiving property stolen knowing the same to have been stolen, and shall be punished as if the offense had been committed in this state. Article 1432 provides that it must be made to appear that the offense charged would also have been receiving stolen property by the law of the foreign country, state, or territory. This the indictment specifically alleges, and it was not necessary to allege in the indictment the facts going to constitute theft against the original taker from whom the property was received. Hodges v. State, 22 Tex. App. 415, 3 S. W. 739; Brothers v. State, 22 Tex. App. 447, 3 S. W. 737. In the first count in this indictment (which was not submitted to the jury), wherein appellant was charged with theft of the goods, it was alleged—

“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 theft, and which ■ said acts, if committed in the state -of Texas, would, under the laws of the state of Texas then and there in force, have been theft, and the said defendant did afterwards unlawfully bring the aforesaid property into the state of Texas, and into the county of Milam.”

In the case of Morgan v. State, 31 Tex. Cr. R. 7, 18 S. W. 647, this court held:

“There were five counts in the indictment preferred against the defendant; the first being one for theft, and the other four charging appellant with receiving stolen property knowing the same to have been stolen. The verdict of the jury was: ‘We, the jury, find the defendant guilty as charged, and assess his punishment at confinement in the penitentiary for two year’s.’ The judgment .rendered upon this verdict was one finding the defendant guilty of fraudulently receiving stolen property, knowing the same to have been stolen.
“It is insisted on this appeal that the verdict and judgment must have been predicated upon the second count in the indictment; and it is further insisted that if such be the case, the verdict and judgment cannot stand, because the said second count is fatally defective in that it fails to state or allege in terms the date when and the place and county in which the said offense was committed. The date and the county were properly alleged in the first count of the indictment, which was the count for theft. This being so, it was unnecessary to repeat the date and county in the second count. In the ease of Hutto v. State, 7 Tex. App. 44, where, in the second count of an indictment the name of the month was written ‘Janury,’ and in the first count, which was dismissed, it was correctly spelled, it was held that the motion in arrest of judgment was correctly overruled; and the case of Wills v. State, 8 Mo. 52, was cited; wherein it was held that where a nolle prosequi to the first of two counts of an indictment was entered, and the time of committing the offense was only shown by reference to the first count, the defendant might be tried and convicted on the second count. Boles v. State, 13 Tex. App. 650. See, also, Regina v. Waverton, 2 Lead. Crim. Cases (2d Ed.) 157. The particular objection to the second count, as above stated, is not well taken.”

And in the case of Dancey v. State, 35 Tex. Cr. R. 618, 34 S. W. 113, 938, this court held:

“While it has been decided that each count, as to the charging part, is independent of every other count, still the preceding count or counts may be looked to, to supply auxiliary allegations — to supply defects in the subsequent counts” (citing Boren v. State, 23 Tex. App. 28, 4 S. W. 463; Boles v. State, 13 Tex. App. 650).

What is the office and purpose of an indictment? It is to notify one of the offense with which he is charged, and the elements thereof, that he may properly prepare his defense, and usually when an offense is charged in the language of the statute, this is sufficient. The indictment in this case charged appellant in specific terms that he received stolen goods from Lefty Linnaman knowing they had been stolen, and brought them into this state, and is sufficient in law to charge this offense, and specifically alleged that the acts committed by appellant were a violation of the laws of the state of Missouri, and if committed by him in this state, would have been a violation of the laws of this state.

The indictment in this case does allege the time and place. It first alleges that on or about the 31st'day of October appellant received the property in the state of Missouri, knowing the same to have been stolen, and thereafter, on or about the 21st day of November, he brought the stolen property into this state. But appellant insists that it was necessary to name the place m the foreign state where the goods were received. This requisite is not stipulated in articles 1431 and 1432 of the Penal Code, and to so hold would be for us to add to the elements of the offense. However, appellant insists that if mistaken in that contention, then as the pleader elected to allege that the goods were received in the county of St. Louis, in the state of Missouri, then it became necessary to prove the allegation as alleged. In the original opinion we showed that the statute (articles 1431 and 1432) did not require the indictment to state the point within the foreign state where the goods were received, but only that they were received in such foreign state and brought into this state, and the county brought to, to show that such county had venue of the offense, and, such allegation not being a requisite of the indictment, same might be rejected as surplusage. In the case of Dent v. State, 43 Tex. Cr. R. 151, 65 S. W. 634, this court held:

“Redundant allegations, and those which are in no manner necessary to a description of the offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the accused, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. Gordon v. State, 2 Tex. App. 154; Burke v. State, 5 Tex. App. 74; Hampton v. State, 5 Tex. App. 463; Mayo v. State, 7 Tex. App. 342; Smith v. State, 7 Tex. App. 382; Rivers v. State, 10 Tex. App. 177; Gibson v. State, 17 Tex. App. 574; Holden v. State, 18 Tex. App. 91; Moore v. State, 20 Tex. App. 275; McConnell v. State, 22 Tex. App. 354, 3 S. W. 699, 58 Am. Rep. 647; Osborne v. State, 24 Tex. App. 398, 6 S. W. 536; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; Cudd v. State, 28 Tex. App. 124, 12 S. W. 1010; McLaurine v. State, 28 Tex. App. 530, 13 S. W. 992; Finney v. State, 29 Tex. App. 184, 15 S. W. 175; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302; Waters v. State, 30 Tex. App. 284, 17 S. W. 411; McDaniel v. State, 32 Tex. Cr. R. 16, 21 S. W. 684, 23 S. W. 989; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408; Williams v. State, 35 Tex. Cr. R. 391, 33 S. W. 1080; Lassiter v. State, 35 Tex. Cr. R. 540. 34 S. W. 751; Webb v. State, 36 Tex. Cr. R. 41,35 S. W. 380; Jordan v. State, 37 Tex. Cr. R. 222, 38 S. W. 780, 39 S. W. 110.”

Appellant insists that if it was not necessary that the county in the foreign state where the goods were received should be named (and articles 1431 and 1432 show that it was not necessary to do so, as the place is sufficiently alleged where the state is named where the goods were received), yet as they were named, such allegation became descriptive of the offense, and had to be proved as alleged. We do not think such allegation can be said to be descriptive of the offense herein alleged, but if so, the proof met the allegation, for while it is shown that the city of St. Louis is a separate and distinct entity from, the county, yet Messrs. Sanders and McKenna testify positively that it was generally spoken of and referred to as being within the county of St. Louis, and there was no evidence offered to the contrary. And where the proof, and all the, proof, shows this to be true, it was not necessary to submit that issue to the jury. Had appellant offered any testimony that it was not so generally spoken of, understood, and referred to, then there would have been an issue raised, and it would have been necessary to submit it to the jury. Polk v. State, 148 S. W. 311; Pendy v. State, 34 Tex. Cr. R. 644, 31 S. W. 647; Bird v. State, 16 Tex. App. 531; Lott v. State, 24 Tex. App. 725, 14 S. W. 277; Taylor v. State, 27 Tex. App. 44, 11 S. W. 35. So it is seen that if it be conceded that the allegation is descriptive, and must be proven as alleged; it has been held in this state that if it was so commonly called, referred to, and spoken of as alleged, upon proof of this fact, this would present no variance. Mr. Wharton in his work on Criminal Law, says, “Variance in criminal law is not now regarded as material unless it is of such substantive character as to mislead the accused in preparing his defense, or would place him in second jeopardy ■ for the same offense,” and in the case of Woodward v. Barth, 7 Barn. & Cres. 301, it was held a “declaration in the pleadings that the plaintiff delivered a trunk to be put on the coach at Chester, in the county of Chester, was held supported by evidence that it was delivered in the city of Chester, which is a county of itself, separate from the county of Chester at large.”

So we hold, as in the original opinion, that it was unnecessary to allege in the indictment the point or place in the state of Missouri appellant received the goods, it being necessary to state only that he received them in that state, and such act was a violation of the law of that state, and he brought them into Texas, and if his acts if done here would constitute a violation of the law, and, the allegation of the point or place of reception in Missouri being an unnecessary allegation, it may and should be treated as surplusage. In the proof, if not alleged, it would not be necessary to make proof of the point and place he received them in Missouri, only that he received them in Missouri. We are also of-the opinion that it is not descriptive of the offense, for it is in no sense descriptive of the goods he received, nor did it tend to identify them, and as the point in the state was an unnecessary allegation, nor would it be in any wise descriptive of the state in which he received them. But if it should be held that the place of reception in any manner was necessary or in any wise descriptive of the offense, the proof showing that the place he received them was generally known, referred to, and called the place named in the indictment as .the place of • reception, this would present no material variance, and the proof is sufficient to sustain the allegation. It cannot be nor is it insisted that he was in any wise misled by such allegation, nor that a plea of former jeopardy would not lie and prevail should it be attempted to prosecute him for the offense alleged.

Mr. McKenna testified to seeing Lefty Linnaman in possession of these goods.

“I saw Lefty Linnaman and Sam Mintz on the 21st. day of November, 1910, in a stable at 2205 North Market street. Lefty Linnaman was nailing the top on the boxes, preparing to ship the stuff. Sam was in there with him, standing by.”

David Bloomfield testified he saw appellant in St. Louis in Mayor Katz’s yard; that Lefty Linnaman was with him; that appellant admitted it was crooked goods he had there in the yard; that he saw rubber coats, yellow slickers, etc., they being the goods as shown by the evidence and circumstances afterwards found in Texas. He testified that this was the only time he ever saw Lefty Linnaman at Katz’s house, and that was the time he heard appellant order Lefty Linnaman to deliver the goods to the storage house. Appellant in his motion for rehearing insists that this possession here shown would come hearer showing him to be the original thief than a receiver of the stolen goods. If this was all the evidence in the record, this contention might be presented with some force, but the evidence discloses that Lefty Linnaman resided in St. Louis, had the reputation of being a professional thief, was engaged in thefts similar to this, and had been convicted, since this offense was committed, of theft of just such goods, while appellant resided in Texas and, if the state’s case is true, was there but temporarily, and if his contention is true, he was not in St. Louis, but in Texas, at this time, and, considering all the facts and circumstances in evidence, while the indictment charged both theft and receiving stolen iDroperty, and the court could have submitted both counts to the jury, yet we do not think the court erred in not submitting the count charging him with theft of the goods, and in submitting the count charging him with receiving stolen goods knowing they were stolen. And that he knew they were stolen goods is evidenced by his acts after the goods had been received in Cameron, Tex.; for upon learning that an investigation was being made in Texas in regard to these goods, he takes them out of his store in Cameron, ships them to Rockdale, giving his name as Gordon. They are then shipped to Taylor, where they are found by Mr. Mc-Kenna, identified by Mr. Sanders, and shipped back to Cameron. Here Mr. Sanders asserted his claim to the goods; appellant does not contest this claim, but allows Mr. Sanders to take possession and reship them to St. Louis. Had he not known they were stolen goods, he would not have quietly stood by and let Mr. Sanders take' them.

While many questions are raised again on the motion for rehearing, and we have thoroughly considered them, we are of the opinion they were correctly disposed of in the original opinion, and it is not necessary to write further.

The motion for rehearing is overruled.

DAVIDSON, J., dissents.'

On Second Motion for Hehearing.

HARPER, J.

Appellant has filed a motion asking leave to file a second amended motion for rehearing in this* cause, after the motion for rehearing had been overruled on March 11, 1914. In this second amended motion he seeks to assign errors on grounds not assigned in the motion for new trial in the court below, nor assigned in the motion for rehearing in this court. Under such circumstances such grounds were not considered in the original opinion, nor in the opinion on the motion for rehearing, and cannot, under the law of this state governing such matters, be now considered by us, and the second amended motion for rehearing, filed with the clerk on March 12th be and the same is here now ordered stricken from the record, and the clerk of this court is ordered to issue the mandate in this cause.
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