Lugo v. State , 93 Tex. Crim. 605 ( 1923 )

The law applicable to an indictment in which the name of the injured party is omitted and in lieu thereof an averment is made that the person's name was unknown to the grand jurors is stated with much clearness and detail by Judge WHITE in the case of Jorasco v. State, 6 Texas Crim. App., 240.

The judgment in the instant case, in the opinion of this court, does no violence to the rule there stated. The stolen goods were taken from the store of Richbook. He was before the grand jury and testified that he had made diligent efforts to identify the thief and to give his name to the grand jury. The district attorney, whom we understand attended the grand jury and drew up the indictment, said upon the witness stand:

"We endeavored to locate the thief through the detective department and in every way we knew how, but it was impossible to find the thief's name."

He also said that he wrote the indictment after the grand jury had heard the evidence and at the direction of the grand jury.

The stolen goods were found by the witness Ruhnke in the possession of the appellant, who admitted that some boys with trunks had been at his place but claimed he did not know who they were. Ruhnke testified that appellant did not tell him the name of the person from whom he obtained the goods; that he (Ruhnke) went to Laredo where a boy was under arrest and was afterwards convicted of the theft of the goods; that he learned the name of this individual but did not remember when he went before the grand jury; that he did not know the name of any person who committed the theft when he so testified before the grand jury.

Appellant's counsel apparently assumes that the person who was convicted at Laredo for theft was the one from whom appellant received the property. This is not made clear by the evidence. We have found no declaration of any witnesses to that effect, but aside from that suggestion, the evidence, so far as it was introduced, was to the effect that the grand jury did not know the name of the person from whom the appellant received the goods. Whether they might have ascertained by reasonable diligence is one of the questions submitted to the jury and found in favor of the State. In deciding that question, it would be the facts that were at hand or available at the time the indictment was found and not those that may come to light at the time of the trial that would prevail. Applying this rule to the record before us, we are not able to say, as a matter of law, that there was a lack of diligence. Any conflict in the testimony on the subject of diligence must, in view of the verdict, be resolved in favor of the State.

The motion is overruled.

Overruled.