Bloch v. State , 81 Tex. Crim. 1 ( 1916 )

This case was affirmed by the whole court as then constituted without any dissent, as shown by the original opinion. For the first time, in his supplemental motion for rehearing, appellant contends the evidence was insufficient to show his guilt. In considering this question, it is important to bear in mind the charge against him. The indictment was preferred under article 1349, P.C., which is: "If any person shall receive or conceal property which has been acquired by another in such manner as that the acquisition comes within the meaning of the term theft, knowing the same to have been so acquired, he shall be punished in the same manner as if he had stolen the property," and strictly conformed thereto and with the approved form therefor. It alleged that he unlawfully and fraudulently received from some person to the grand jurors unknown, 3000 pounds of copper bullion, the property of O.L. Snell, of the value of $350, which had theretofore been acquired by some person to the grand jurors unknown, in such manner as that the acquisition thereof comes within the meaning of the term theft; and that he received it knowing the same to have been so acquired. Or, more tersely stated, that he received said stolen copper knowing it to be stolen.

The indictment did not charge him with the theft of the property; nor that he was an accomplice to the theft thereof. He could not have been convicted for either of those offenses under the indictment herein. Nor was he so convicted, nor attempted to be. He could have been convicted for receiving said stolen copper knowing it to be stolen, and for no other offense, and was convicted of that offense only.

Most of the material facts were clearly established by uncontroverted positive testimony. If any material fact was disputed or controverted, it was established by a preponderance of the evidence, and mostly by positive testimony, and amply so. The substance of the testimony will here be given.

The positive, undisputed testimony established that the El Paso Smelting Works was a company located, and doing the business of smelting copper ore at El Paso, in August, 1915, and prior thereto; that it smelted and molded it in the form of bars of bullion. These bars averaged about 300 pounds to the bar. On August 3rd or 4th, said smelting company loaded into a certain railroad car nine of its bars, with others, in a shipment to New York. Both the smelting and railroad company's agents at the time inspected and counted the bars therein. Both company's agents then sealed up all the doors of that car and put the seals of their respective companies on every door. That car was then turned over to the conductor, and he and his crew inspected and saw that the car was closed and doors sealed, as stated, and at night he started with it in a train to its destination. Some miles out of El Paso, in that county, someone, wholly unknown and who could not be identified, broke both seals of one door, opened the car and that night threw out of it onto the ground while the train was running, said nine bars, and others. No one testified to seeing the person or persons actually take and throw off the bars at the time. When approaching a station, the conductor discovered the waste in the journal box of this car afire, and stopped his train and put out the fire. The waste had been set afire — it did not catch from a hot box. When he stopped, he saw three or four unknown men get off of his train. They were strangers, and he did not know, and could not identify them. He did not then learn said car had been broken into, but at his next stop he saw both seals had been broken on one door. He and the railroad agent at that station then entered the car, counted the bars therein and found that forty had been taken therefrom, after he left with it in his train from El Paso. These facts were communicated to the railroad and smelting companies at once, and the next morning they sent out from El Paso persons to see if they could find said copper. The persons sent went out on the railway track and found, a few miles out of El Paso, where these nine bars, and others, had been thrown from the train while running by the indentations made in the ground where they struck, and they were scattered along a considerable distance. Further on they found and recovered other bars. They also at the points where these nine bars had been thrown off and struck the ground, saw the tracks of vehicles, one drawn by two animals with small feet. At these places they found the tracks of men, showing where they had picked up these nine bars, carried them to the vehicles, and evidently placed them therein. They then tracked these vehicles back towards El Paso. These nine stolen bars were found and completely and thoroughly identified the next day when appellant had had them put in three barrels and sent to the depot of another one of the railroads to himself ship them off. The positive testimony of other witnesses, and that of appellant himself, too, was that he claimed these nine stolen bars at the time, and that they were in his possession, he attempting to have them shipped at the time the railroad and smelting companies' agents found, and recovered possession of, them from him. They were thoroughly and completely identified by positive testimony as the said nine bars which had been so stolen.

The positive testimony, without controversy, and by appellant himself as well as of others, established that he, at this time, had his headquarters and place of business at his residence, 305 East Boulevard, in El Paso, and there had a warehouse. It was at this place, his home, where he and his clerk, Louis Cohn, for him held out and transacted his business. At that time he also had another warehouse at 1022 Arizona Street, in El Paso. His said clerk, Louis Cohn, testified that on the early morning of August 6th, when he went down to appellant's home and place of business to go to work for appellant as usual, appellant himself was there at his residence and told him he had three bars of copper bullion in said warehouse at his said home and directed him to meet some Mexicans at the Dieu Hospital on Arizona and Stanton Streets; "he said there would be two wagons there with copper bullion and to take them over to 1022 Arizona Street, where he had the other warehouse." That in compliance with appellant's instructions, he went and found the Mexicans waiting for him at the place appellant had designated with two conveyances. That to one of the conveyances were two little Mexican burros, and in this wagon there were three bars of copper bullion, "all covered up with brush and small timber, or wood on top of it." That in the buggy there were three bars, and it was all covered up with a rug on top of it. That as directed and required by appellant, he showed said Mexicans in charge of said vehicles the way to appellant's warehouse on Arizona Street, and that they, said Mexicans, unloaded the said six bars of bullion in appellant's said warehouse. That he then went back to appellant's and told him the six bars were there. That these Mexicans also then went back to appellant's said home. They undoubtedly went back there at the time to get their pay for the said stolen copper, and then got it from appellant. Said witness further testified that those three bars at appellant's residence were delivered there on the same morning the other six were delivered, as stated, in appellant's other warehouse. He further testified as to said three bars: "I found the bars at his residence in the morning when I got to work." That the next day appellant told him to ship out all of said nine bars of copper, the three at his residence and the other six at his Arizona Street warehouse, and that under his then instructions he had a transfer wagon to haul said three bars from appellant's residence to his Arizona Street warehouse, where he then had said nine bars put in three barrels, three bars in each barrel, closed them up and sent them to the depot of one of the railroads to ship them away under appellant's instructions. That appellant told him to scratch out certain identification marks on said bars, which he tried to do.

Ben West, a special detective officer for one of the railroads, testified that on the morning said bars were attempted to be so shipped out, and before he had located any of them, he went and watched appellant's residence to see if he could locate any of said stolen copper; that while there watching, he saw the said transfer wagon come to appellant's back gate in the alley, and from there he saw said transfer wagon and Cohn go to appellant's Arizona Street warehouse. On the way they picked up three barrels. He then watched that warehouse and saw three barrels being hauled therefrom. He followed, and arrived at the depot just as the barrels were unloaded on the platform, and had one of them opened, and found therein three of said stolen bars, which were completely identified as three of the stolen bars. The smelter authorities then procured at that time all nine of said stolen bars in said three barrels, by search warrant proceedings, and they were thoroughly identified as nine of the bars stolen off of said train, as stated. Mr. West further testified that when he was up at Bloch's house on said occasion watching, he was looking for stolen copper; that he saw appellant come to the gate out to said express wagon in company with said Cohn and saw him at the time giving Cohn instructions where to go. When the said bars were stopped at the depot, Cohn sought and found appellant and told him of the seizure thereof. Appellant at once went to the depot, and he and other witnesses also positively testified he claimed all nine of said bars as his property, and stated that he had bought them.

Mr. Cohn further testified that he was present when the transfer wagon came to appellant's to haul said three bars from his house to appellant's Arizona Street warehouse and did so haul them. This was the same time that said West saw what he did and testified thereto. Cohn further testified that he knew that said transaction about said nine bars was dishonest and that they were engaged in a dishonest transaction. "I knew that that stuff was stolen. I knew at the time I took it down to the warehouse that it was stolen; as to how I knew it was stolen, I knew because there is nobody sells anything like that unless it is stolen, and he (appellant) told me when it came in. . . ."

John Goodwin testified positively that just after the previous trial, while the jury were out, appellant, Morales and himself were talking about the case when Mr. Hill, his attorney, came to where they were and asked: "How can you people tell that this bullion was stolen off this train?" And that appellant then said: "You need not explain to me. I knew at the time I bargained forit it was stolen off the train. I knew when I paid for it it wasstolen off the train." Mr. Goodwin, on cross-examination, when he was asked by Mr. Hill if he was not "joshing" with him, swore: "He (appellant) did not say that joshing. He was just as earnest as he ever said anything in his life. . . . We were talking as earnest as we could." He then reiterated positively and unequivocally his testimony of what appellant said to him as quoted above. Angel Morales testified substantially the same thing as to the said statement or admission by appellant. He swore: "He (appellant) said at that time he knew it was stolen from that car." Mr. Jones testified that he heard appellant make a statement in regard to said copper. "He made a statement down there to the effect that he had bought this copper." This occurred at the Justice Court in some proceeding about the copper. Again, on direct examination, he swore that down in the Justice Court appellant claimed that copper as his. "He told me he had bought it and was entitled to it." It is true that appellant denied making said statement to Goodwin, but he did swear that the said several parties were together on that occasion and did discuss the matter at said time, and Mr. Hill claimed that they were "joshing" with Goodwin about it, and Mr. Hill swore: "And I made the remark, I said, `Well' — something to this effect — I don't remember exactly — `If I were you I never would buy another piece of copper;'" that he said that to appellant. "And I said something else with reference to the case, and Mr. Goodwin made some remark, and Mr. Bloch made the remark: `Why don't you people watch your copper and catch the thief?' or something to that effect, `and not jump on us fellows because we happen to get hold of it,' something to that effect; there was several words said there, but I never heard at any time Bloch say that he knew that the copper was stolen or that he knew it was; I was right there during the conversation." This testimony by Mr. Hill was of a negative kind. He did not swear that appellant did not make the statement to which Goodwin testified, but, as shown, that he never heard it. Neither Goodwin, Morales nor Jones were in any way impeached, and even though appellant denied making the statement to Goodwin and Morales, and Mr. Hill in a measure bore him out in a negative kind of way, still that was a question of fact for the jury. He did not dispute nor deny Jones' testimony. The jury unquestionably had the right to believe, and doubtless did believe, Goodwin, Morales and Jones and did not believe appellant nor his attorney.

All this positive testimony amply and clearly showed that appellant himself personally received all this stolen copper. It shows, without doubt, that he personally received three bars of it at his residence before Cohn reached there that morning; that he then staked out the Mexicans with the other six bars of it, having at the time received it, and was merely awaiting the arrival of Cohn, his clerk, so as to direct and require him to go and show these Mexicans his warehouse and have them to put those six bars in that warehouse for him, so as to himself avoid going, which they did. Cohn did not receive it; Cohn did not buy it; Cohn did not pay for it; and Cohn never claimed it. Cohn had no interest in it at any time. Appellant himself personally bought it, received it and paid for it, and claimed it, and it was in his possession. All that Cohn did was to obey his instructions to have the Mexicans put the six bars in his, appellant's, warehouse. Hence, appellant's contention that there was no evidence showing that he received said stolen property knowing it to be stolen, not only can not be sustained, but the reverse is clearly shown by positive testimony. The whole testimony was without doubt ample to show his guilt.

But, notwithstanding all this positive testimony, clearly showing, as it did, that appellant himself received said stolen copper knowing it to be stolen, he still contends that he physically and manually did not receive it, etc., but that Cohn, his clerk, did. There is no contention or evidence whatever that Cohn himself, for himself and not for appellant, bought said copper or paid for it, or received or handled it, or undertook to ship it. It is shown by all testimony from all sources and witnesses, that all and everything Cohn did about said copper was done by him as the clerk and agent of appellant, and under his instructions and direction, and not otherwise. Then what is the law applicable thereto?

Upon the most complete and exhaustive examination of the authorities, this identical question was decided by this court against appellant in Kaufman v. State, 70 Tex.Crim. Rep.. In that case the question was briefed and argued most elaborately and vigorously by able, experienced and eminent attorneys. It was shown that appellant therein was not personally present when the stolen property was placed in his barn for him under his direction, and that, as a matter of fact, he never had his hands on it, and was not present when it was delivered in his barn for him, and that he never otherwise physically received or handled it, but, on the contrary, that he was not at that place at the time it was physically delivered at his barn, nor for some hours before nor after, but some miles distant therefrom. In that case the appellant attacked the charge of the court to the effect that if the property was delivered in his barn or premises, owned and under his control and management, at his direction, then this would constitute the receiving of said property by him, and the court expressly refused to charge on alibi in his favor. Appellant in that case properly and completely raised both questions. This court, in a unanimous opinion, said:

"Mr. Bishop, in his New Criminal Law, volume 2, section 1139, in treating of the act of receiving stolen goods, says: `The leading doctrine here is that the goods must come under the control of the receiver; yet the control need not be manual. For instance, — if they are in the hands of a person whom he can command in respect of them, they may be deemed to have been received. And one who allowed a trunk of stolen goods to be sent on board a vessel in which he had taken passage, was held to have received them.'

"In 34 Cys., page 517, in treating of the receiving, it is said: `To be convicted of receiving stolen goods, defendant must have had such control of the property as amounts to constructive possession, at least; but the possession need not be actual and corporeal. It may be through the instrumentality of another person, and the offender need not have seen the goods.'

"In Huggins v. State, 41 Ala. 393, which was a conviction for receiving stolen property, it is held:

"`The charge given at the instance of the solicitor, to the effect that the defendant might commit the offense without seeing the property, was obviously correct. The defendant could certainly be guilty of committing the felony charged, through the instrumentality of others, without performing the act of receiving or buying in person, or actually seeing the property.'

"In the case of State v. Stroud, 95 N.C. 626, it is held: `The court charged, in substance, that if the meat after being stolen was directed by the defendant to be carried to a certain place, he at the time knowing that it had been stolen, it was a receiving in the eye of the law. To constitute the criminal offense of receiving, it is not necessary that the goods should be traced to the actual personal possession of the person charged with receiving. It would certainly make him a receiver in contemplation of law, if the stolen property was received by his servant or agent, acting under his directions, he knowing at the time of giving the orders that it was stolen, for qui facit aliumfacit per se. It is the same as if he had done it himself.'

"We are clearly of the opinion that the evidence in this case justified the jury to believe that appellant knew that these goods were stolen by Howard and his associates and that he directed that they should be delivered to him by placing them in his barn, which was done. This `was a receiving by him in the eye of the law.' It was not necessary under the law that he should personally be present, nor manually receive the property under the circumstances of this case. The charge of the court above complained of was correct and no charge on alibi should have been given." Said case was approved in Pendley v. State,71 Tex. Crim. 281.

So that whether appellant received said stolen copper physically and manually, or Cohn, his clerk and agent, did so for him, makes no difference. He was properly convicted in either event. And it would make no difference whatever whether Cohn was a principal with him or not. However, the question of principal, vel non, was not raised in the lower court in any way. The court did not charge the law of principals and should not have done so. No objection whatever was made to his charge because he did not do so, nor was any charge thereon asked by appellant, nor suggested, nor intimated, in the court below. No such charge should have been given; but, if so, it is too late to now complain thereof under the plain provisions of the statute, and all the decisions.

Of course, under the indictment, appellant could not have been convicted as an accomplice of Cohn, nor was he sought to be. The court submitted no such issue, nor the law applicable thereto, nor did appellant in any way complain of the charge on that account, nor ask any charge on the subject. The court did charge that Cohn, as a witness, was an accomplice and had to be corroborated. His charge on this subject was full and complete, in strict conformity with the statute and decisions, and in no way complained of by appellant in the court below.

The only other material question is whether the court erred in not charging the law of circumstantial evidence.

In considering and discussing that question, it is still necessary to keep in mind what the offense charged against appellant was, and of which he was convicted. It was not for thetheft of said copper. In no contingency could he have been convicted of the theft of it, nor was he sought to be. The indictment charged him with receiving the stolen copper knowingit to be stolen — an entirely separate and distinct offense from the theft of it. This is so fully demonstrated by Judge Hurt in McAfee v. State, 14 Texas Crim. App., 668, and Kaufman v. State, supra, it is unnecessary to discuss it or cite the other authorities.

In an indictment for the offense herein charged, "it is not necessary to allege that defendant received the property without the consent of the owner, nor that it was received with the intent to deprive the owner of the value thereof, nor with the intent to appropriate it to the use or benefit of the defendant." And hence, of course, not necessary to prove any of these matters. 2 Branch's Ann. P.C., p. 1365; Nourse v. State, 2 Texas Crim. App., 304; Brothers v. State, 22 id., 447; Frail v. State, 57 S.W. Rep., 92. In an indictment for theft each and all of said allegations are essential (art. 1329, P.C.) and must be both alleged and proved.

In this case, the gist of the offense — the acts — the main facts — the factum probandum — the offense itself, is, that appellant received said stolen copper knowing it to be stolen. Not that any certain person, known or unknown, stole it. It is wholly immaterial whether appellant knew who the thief was, or when, where or how he stole the copper.

In Grande v. State, 37 Tex.Crim. Rep., this court, speaking through Judge Davidson, said: "The gist of the offense is receiving the property with knowledge on the part of the receiver that it has been stolen." It is never necessary for the State to prove that any certain person stole the property, nor that the defendant knew at the time he received it who stole it. All that is necessary for the State to prove on this point under the very terms of the statute itself (art. 1349, P.C.) is, that the defendant received the property, and at the time, "knowing the same to have been so acquired" — stolen.

The law of this State as to when a charge on circumstantial evidence should be given, and when it should not be given, is as certain and fixed as any law can well be, and has been from before the creation of this court. The decisions are unanimous, uniform and in great number.

Judge White in his Ann. C.C.P., section 813, subdivision 1, says such charge is required "where the evidence to prove theoffense is purely and wholly circumstantial." He cites a large number of the earlier cases directly in point. Mr. Branch, in his Crim. Law, p. 107, and in his 2 Ann. P.C., sec. 1873, p. 1039, is to the same effect. In both of these books he cites many cases directly in point.

Judge White in section 813, subdivision 2, also says, "it isonly in cases of, or purely dependent upon, circumstantialevidence, that the court is required to instruct upon the rules of law applicable to such evidence," citing a large number of the earlier cases in point. To precisely the same effect Mr. Branch states the law in both his said works on the pages given, and he cites many cases in point. There is no case decided by this court to the contrary. They are all to the same effect down to this time.

In the recent case of Sullenger v. State, 79 Tex. Crim. 98, 182 S.W. Rep., 1140, this court quoted and expressly approved this unquestionably correct statement of the law by Mr. Branch:

"If defendant admits that he did the killing in a murder case, or the taking in theft, or that he did the act which constitutes the factum probandum, whatever be the offense charged, it is not necessary to charge on circumstantial evidence. Barnes v. State, 53 Tex.Crim. Rep., 111 S.W. Rep., 943; High v. State,54 Tex. Crim. 333, 112 S.W. Rep., 939; Dobbs v. State,51 Tex. Crim. 629, 103 S.W. Rep., 918; Clore v. State, 26 Texas Crim. App., 624, 10 S.W. 242; House v. State, 19 Texas Crim App., 227; Keith v. State, 50 Tex.Crim. Rep., 94 S.W. Rep., 1044; Self v. State, 28 Texas Crim. App., 409, 13 S.W. Rep., 602; Usher v. State, 47 Tex.Crim. Rep., 81 S.W. Rep., 309; Gann v. State, 42 Tex.Crim. Rep., 59 S.W. Rep., 896; Huffman v. State, 28 Texas Crim. App., 174, 12 S.W. Rep., 588."

"Where an act has been proved by direct evidence, a charge on circumstantial evidence is not required because the intent with which the act was committed is sought to be established by circumstances. Williams v. State, 124 S.W. Rep., 955; Flagg v. State, 51 Tex.Crim. Rep., 103 S.W. Rep., 855; Dobbs v. State, 51 Tex.Crim. Rep., 103 S.W. Rep., 918; Roberts v. State, 44 Tex.Crim. Rep., 70 S.W. Rep., 423; Alexander v. State, 40 Tex.Crim. Rep., 49 S.W. Rep., 229; Russell v. State, 38 Tex.Crim. Rep., 44 S.W. Rep., 159; Houston v. State, 47 S.W. Rep., 468; Becker v. State, 50 S.W. Rep., 949."

Again Mr. Branch unquestionably correctly states the law: "The fact that the only direct testimony comes from an accomplice witness does not make it necessary to charge on circumstantial evidence. Wampler v. State, 28 Texas Crim. App., 352, 13 S.W. Rep., 144; Thompson v. State, 33 Tex.Crim. Rep., 26 S.W. Rep., 198; Kidwell v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 342; McKinney v. State, 48 Tex.Crim. Rep., 88 S.W. Rep., 1012; Tune v. State, 49 Tex.Crim. Rep., 94 S.W. Rep., 231; Perry v. State, 69 Tex.Crim. Rep., 155 S.W. Rep., 263; Johnson v. State, 72 Tex.Crim. Rep., 162 S.W. Rep., 512." (2 Branch's Ann. P.C., p. 1040.)

Again he correctly states the law: "Proof that defendant admitted to having killed the deceased (or as proven in this instance, that appellant received the copper, and at the time knew it was stolen) is direct and not circumstantial evidence of the main inculpatory fact, and a charge on circumstantial evidence is not required when proof of such admission is in evidence. Heard v. State, 24 Texas Crim. App., 103, 5 S.W. Rep., 846; Smith v. State, 28 Texas Crim. App., 309, 12 S.W. Rep., 1104; White v. State, 32 Tex.Crim. Rep., 25 S.W. Rep., 784; Hedrick v. State, 40 Tex.Crim. Rep., 51 S.W. Rep., 252; Gantt v. State, 105 S.W. Rep., 799; Strickland v. State, 161 S.W. Rep., 110; Womack v. State, 74 Tex.Crim. Rep., 170 S.W. Rep., 139; Cook v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 227; Guerrero v. State, 75 Tex.Crim. Rep., 171 S.W. Rep., 733." (2 Branch's Ann. P.C., p. 1039.)

Mr. Branch again states the law: "If there is direct testimony from any source that defendant killed the deceased (or as in this case that appellant received the stolen copper, at the time knowing it was stolen) then there is direct evidence of the main fact to be proved and the case does not wholly rest upon circumstantial evidence," citing a large number of cases directly in point. (2 Branch's Ann. P.C., sec. 1874.)

And again: "Where there is direct evidence from any source that defendant killed the deceased, a charge on circumstantial evidence is not required because the intent with which the homicide was committed is only to be inferred from circumstances," citing many cases. (2 Branch's Ann. P.C., p. 1039.)

And still again: "A charge on circumstantial evidence is not required if there is proof that deceased, either as a part of a dying declaration or as a part of the res gestae, stated that defendant shot him," citing many cases. (2 Branch's Ann. P.C., p. 1040.)

All these principles are stated also in 2 Vernon's Ann. C.C.P., pp. 445, 446, 447, where nearly two pages of cases are collated and cited.

Each and all these principles as fully and completely apply to each and every other offense, and the offense herein, as to a killing, and they exclude the idea that any charge on circumstantial evidence should have been given herein.

It was necessary for the testimony to show that said copper was worth $50 or over, in order to convict for a felony. It is equally true that venue in El Paso County had to be proven. But neither nor both of these things was the gist of the offense — the factum probandum — the main facts — the acts, constituting the offense. The offense was receiving the stolen copper knowing it to be stolen. Either or both of the above essentials — that the value was $50 or over, and that the venue was in El Paso County, could be proven by circumstantial testimony alone, and yet no charge on circumstantial testimony was necessary because thereof. If a charge on circumstantial testimony had to be given every time any material fact, other than the gist of the offense — the acts — the main facts — the offense itself — the factumprobandum, had to be proven, then in many cases several such charges would have to be given as to every such fact which was proven by circumstantial testimony alone. No case, and no authority, has ever yet held such charge to be necessary.

Appellant cites and relies upon Nichols v. State,39 Tex. Crim. 80, and other cases following that decision where the facts were applicable. That decision, under the facts of that case, was undoubtedly correct, and is not questioned. But instead of being in favor of, it is directly against, appellant's contention. The appellant therein was indicted for passing aforged instrument knowing it to be forged. The court, through Judge Hurt, said: "It is urged on the part of the State that the act of passing the alleged forged instrument was proven by direct and positive testimony, and although the forgery of said instrument, and that appellant knew when he passed it that it was forged, was proven by circumstantial testimony, this did not constitute the case one of circumstantial evidence alone. It may be conceded that the case is not one consisting of circumstantial evidence alone; nevertheless it occurs to us that the gravamen or gist of the offense here does consist of circumstances. Indeed, the main inculpatory facts are proved by circumstantial evidence. In the offense of passing a forged instrument, an essential ingredient thereof is that such instrument was forged, and that the utterer knew that it was at the time he passed it. The mere passing of an instrument amounts to nothing unless the other essential elements be established, towit, the forgery and the knowledge on the part of the utterer. These are the main or essential facts to be proved, and, where they are established alone by circumstantial evidence, a charge on that subject, when requested, should be given, and a failure to charge, when properly excepted to, will constitute error." It is seen, as stated therein, the fact that it was proven by positive evidence that appellant therein passed the instrument, was not the "gravamen or gist of the offense." "The mere passing of an instrument amounts to nothing unless the other essential elements be established, towit, the forgery and the knowledge onthe part of the utterer. These are the main or essential facts tobe proved." Judge Hurt in that opinion specifically again says: "The essential elements constituting the offense charged was not the mere passing of an instrument, but the passing of a forgedinstrument with knowledge on the part of the utterer at that timethat it was a forgery."

This court, through Judge Henderson, in Gaut v. State,49 Tex. Crim. 495, cited, quoted from and discussed said Nichols case, restating what Judge Hurt held therein as the gravamen orgist or essential elements, of that offense. Then he briefly recited the testimony "tending to show knowledge on the part of appellant" that the instrument he passed was a forgery, and said: "While we fully recognize the doctrine laid down in Nichols v. State, supra, yet we believe the facts in this case place appellant in juxtaposition to the main fact, i.e., the circumstances showing his knowledge that said instrument was forged, indicating that he forged it, brings him in such proximity or juxtaposition in regard to the question of knowledge as to take this case out of the realm of circumstantial evidence." So in this case, that some unknown person stole the copper was not the gist of the offense, but the essential facts were that he received the stolen copper, knowing at the time that it was stolen.

The positive testimony of Cohn, of Jones, of West, and of appellant's own admissions, without doubt, was amply sufficient to show, and did show, that appellant received said stolen copper; and the positive testimony of Goodwin and Morales that appellant admitted to them, "I knew at the time I bargained for it (said stolen copper) it was stolen off the train; I knew when I paid for it, it was stolen off the train," without doubt, was amply sufficient to show, and did show, that at the time appellant received said stolen copper he knew it had been stolen; and his said admissions, without doubt, were ample to show, and did show that said copper had been stolen. So that every essential element of the offense was proven by positive, and neither was proven, by circumstantial evidence alone. Hence, no charge on circumstantial evidence should have been given.

Undoubtedly the motions for rehearing should be overruled, and the affirmance should stand. I dissent from the reversal.