Bloch v. State

193 S.W. 303, 81 Tex. Crim. 1, 1916 Tex. Crim. App. LEXIS 399

• Court: Court of Criminal Appeals of Texas
• Decided: November 8, 1916
• Docket: No. 4240.
• Status: Published

Opinions

HARPER, Judge.

Appellant was convicted of receiving stolen property, knowing it to be stolen, and his punishment assessed at two years confinement in the State penitentiary.

Appellant sought to quash the indictment on the ground that it did not allege appellant “unlawfully and fraudulently concealed the property,” as well as alleging that he unlawfully and fraudulently received it, knowing it to be stolen. Article 1349 makes it an offense to either receive or conceal stolen property, knowing it to be stolen. It is not necessary to do both to be guilty of an offense, but the doing of either is a violation of the law. Thurman v. State, 37 Texas Crim. Rep., 646. The court committed no error in refusing to quash the indictment on the grounds named in the motion.

The motion for a new trial alleges many grounds as error in admit' ting and rejecting testimony, but no bills of exception appear in the record in regard to such rulings, therefore the questions are not presented in a way we are authorized to review them. (Owen v. State, 4 Texas Crim. App., 153; Smith v. State, 34 Texas Crim. Rep., 123; Janea v. State, 56 Texas Crim. Rep., 100, and cases cited on page 132, Branch’s Annotated Penal Code.)

There are but two bills of exception in the record, the first presenting the question that the court erred in failing to charge on circumstantial evidence, and erred in refusing to give appellant’s special charge on that issue. This is not a case depending on circumstantial evidence. The stolen property is positively identified by several witnesses; its receipt by appellant is shown by positive evidence, Louis Cohn swearing to that fact, and then the State proves several admissions of defendant, in one instance Mr. Goodwin swearing appellant said, “I knew at the time I bargained for it and knew when I paid for it, it was stolen off the train.” Wampler v. State, 28 Texas Crim. App., 352; Whitehead v. State, 49 Texas Crim. Rep., 123, and cases cited in section 203, Branch’s Crim. Law.

The only other bill in the record relates to the action of the court in overruling his motion for a new trial. One ground of the motion alleges the misconduct of the jury. To properly present this question for review a bill of exceptions should have been reserved, and in this bill should be incorporated the testimony heard on this ground of the motion, and it should have been filed in term time. The term of court at which appellant was tried adjourned June 24, 1916. The bill in the record (which includes no testimony heard) was not presented to the court for approval until September 7th, — some forty days after adjournment of the court. There is with the record a separate paper which is termed “supplemental statement of facts, on motion for new trial,” filed on September 8, 1916, in the trial court — long after court had adjourned for the term. In Black v. State, 41 Texas Grim. Rep., 185, this question was thoroughly discussed, and it was there held: “These matters must be made part of the record during the term of court. There is no statute authorizing such matters to be perpetuated in papers filed subsequent to the term.” In that case the motion for a new trial alleged misconduct of the jury, as in this, and the court refused to consider the ground because the evidence heard thereon was filed after term time. The rule announced in that case has been followed in an unbroken line of decisions.

The judgment is affirmed.

Affirmed.