Thomas v. State

31 S.W.2d 1080, 116 Tex. Crim. 643, 1930 Tex. Crim. App. LEXIS 843

Opinions

MORROW, Presiding Judge.

Fraudulently receiving and concealing stolen property is the offense; penalty, a fine of $50.00 and confinement in the county jail for a period of 15 days.

It is charged that the theft was committed by Levi Washington.

The court instructed the jury that as a predicate fpr a conviction it must appear from the evidence to the satisfaction of the jury, beyond a reasonable doubt, that the property was acquired by theft and that the accused, knowing it to have been stolen, received and concealed it. Following this the court said:

“If either one of these two essential elements is wanting, then the defendant cannot be convicted, and is entitled to be acquitted.”

Following the above this appears:

“Belief without actual knowledge is sufficient to sustain the charge.”

Later in the charge the court instructed the jury thus:

“And you further believe from the evidence, beyond a reasonable doubt, that said property was acquired by theft and that the defendant knew that said property was acquired by theft * * * a conviction might result.”

A proper charge on the presumption of innocence and reasonable doubt was embraced in the court’s charge.

There was an exception to the charge because of the use of the words quoted above, namely, “belief without actual knowledge is sufficient to sustain the charge.” No corrective special charge was presented. It is a rule of practice that in the trial of a misdemeanor case, faults in the charge which can be corrected should be pointed out in an exception to the charge, and in addition thereto a special charge correcting the faults should be presented. The charge, taken as a whole, in the present case, indicates that the use of the language mentioned was by inadvertence and that the jury was made to understand that the appellant’s conviction could not be supported unless at the time he received the property he had actual knowledge that it was stolen. The evidence is not before this court, but it may have been of a nature so conclusive that no verdict other than that in the' present case could have been rendered. The motion for new trial was overruled and the presumption on appeal is in favor of the regularity of the court’s ruling.

The judgment is affirmed.

Affirmed.