Morgan v. State , 128 Tex. Crim. 290 ( 1935 )

From the appellant's testimony before the grand jury, introduced by the State, we reproduce the following: "I did not buy that motor from them, I got it on a pawn for $1.50 about the 24th of January; somebody pawned it with me for $1.50. As to who they are, will state that I don't know what you would call his name; he registered on the book and I guess I can get his name for you; it is down at the camp ground. I do not know where this man went after pawning it to me and I do not know where he lived but he registered from Sweetwater."

From the above, it appears that the State introduced testimony in which it was stated that the property had been pawned to the appellant; that he did not know the name of the person from whom he received the property; that appellant stated, "He is registered on the book and I guess I can get his name for you; it is down at the camp ground." We understand this information was obtained in an investigation before the grand jury previous to the indictment of the appellant. The record fails to show that the State made any investigation or effort to ascertain the truth of the appellant's testimony that he had the name of the person, from whom he obtained the property, upon the record at the camp ground. It was the duty of the State in writing the indictment in the form in which it was written, that the person owning the stolen property was unknown, to show that it had made reasonable investigation to ascertain the name of the owner of the property. The State assumed that the information given by the appellant would not lead to the identity of the person from whom the stolen property was received by the appellant. The assumption may or may not have been correct, but the circumstances are such as made it obligatory upon the State to show that it made such investigation and failed to ascertain the name. If the information left the State in doubt as to the ownership of the property, it might have solved the dilemma by putting in the indictment two counts; one charging the name of the owner unknown and the other charging the name of the person claimed by the appellant to have been the owner.

Article 402, C.C.P., 1925, dealing with the subject of indictments, concludes with the following statement: "Where the ownership of the property is unknown to the grand jury, it shall be sufficient to allege that fact."

In the condition in which the indictment is found, we understand that the precedents require some diligence upon the part of the grand jury or upon the State to learn in some manner the name of the owner of the alleged stolen property. See Clements v. State, 43 Tex.Crim. Rep.; Trinkle v. State,88 Tex. Crim. 233; also Branch's Ann. Tex. P.C., p. 239, sec. 463.

We are constrained to overrule the State's motion for rehearing, and it is so ordered.

Overruled.