Zweig v. State , 74 Tex. Crim. 306 ( 1913 )

On motion for rehearing it is insisted that as the second count in the indictment, charging appellant with receiving stolen property and bringing same into this State, did not allege that the manner Lefty Linnaman had obtained the goods constituted theft under the laws of the State of Missouri, and the same acts would constitute theft under the laws of this State, that this count in the indictment is for that reason fatally defective. Receiving property known to have been stolen, and bringing same into this State is a separate and distinct offense from the original taking, and it will be noticed in the original opinion that this count in the indictment does allege that goods had been acquired in such manner as the acquisition of the same came within the meaning of the term "theft" and "the said Louis Zweig then and there well knowing the same to have been so acquired at the time he received the same as aforesaid,and which said acts by the said Louis Zweig were, by the laws ofthe State of Missouri, then and there in force, the offense ofreceiving stolen property; and which acts, if the same had been committed in the State of Texas, would, under the laws of thesaid State of Texas then and there in force, have been theoffense of receiving stolen property; and the said Louis Zweig did afterwards unlawfully, viz: on or about the twenty-first day of November, A.D. 1910, bring the aforesaid property into the State of Texas, and into the County of Milam." Article 1431 of the Penal Code provides if any person having committed an offense in a foreign country, state or territory, which if committed in this State would have been receiving of stolen property, knowing the same to have been stolen, shall bring into this State any property so received he shall be deemed guilty of receiving property stolen, knowing the same to have been stolen, and shall be punished as if the offense had been committed in this State. Article 1432 provides that it must be made to appear that theoffense charged would also have been receiving stolen property by the law of the foreign country, state or territory. This the indictment specifically alleges, and it was not necessary to allege in the indictment the facts going to constitute theft against the original taker from whom the property was received. (Hodge v. State, 22 Texas Crim. App., 415; Brothers v. State, 22 Texas Crim. App., 447.) In the first count in this indictment (which was not submitted to the jury) wherein appellant was charged with theft of the goods, it was alleged "which said acts by the said Louis Zweig were, by the laws of the State of Missouri, then and there in force, the offense of theft; and which said acts, if committed in the State of Texas, would, under the laws of the State of Texas then and there in force, have been theft, and the said defendant did afterwards unlawfully bring the aforesaid property into the State of Texas, and into the County of Milam." In the case of Morgan v. State, 31 Tex. Crim. 1, on page 7, this court held:

"There were five counts in the indictment preferred against the defendant; the first being one for theft, and the other four charging appellant with receiving stolen property, knowing the same to have been stolen. The verdict of the jury was: `We, the jury, find the defendant guilty as charged, and assess his punishment at confinement in the penitentiary for two years.' The judgment rendered upon this verdict was one finding the defendant guilty of fraudulently receiving stolen property, knowing the same to have been stolen.

"It is insisted on this appeal that the verdict and judgment must have been predicated upon the second count in the indictment; and it is further insisted, that if such be the case, the verdict and judgment can not stand, because the said second count is fatally defective, in that it fails to state or allege in terms the date when and the place and county in which the said offense was committed. The date and the county were properly alleged in the first count of the indictment, which was the count for theft. This being so, it was unnecessary to repeat the date and county in the second count. In the case of Hutto v. State, 7 Texas Crim. App., 44, where, in the second count of the indictment, the name of the month was written `Janury,' and in the first count, which was dismissed, it was correctly spelled, it was held that the motion in arrest of judgment was correctly overruled; and the case of Wills v. State, 8 Missouri, 52, was cited, wherein it was held, that where a nolle prosequi to the first of two counts of an indictment was entered, and the time of committing the offense was only shown by reference to the first count, the defendant might be tried and convicted on the second count. Boles v. State, 13 Texas Crim. App., 650. See also Regina v. Waverton, 2 Lead. Crim. Cases (2d ed.), 157. The particular objection to the second count, as above stated, is not well taken."

And in the case of Dancey v. State, 35 Tex.Crim. Rep., this court held: "While it has been decided that each count, as to the charging part, is independent of every other count, still the preceding count or counts may be looked to to supply auxiliary allegations — to supply defects in subsequent counts," citing Boren v. State, 23 Texas Crim. App., 28; Boles v. State, 13 Texas Crim. App., 650. What is the office and purpose of an indictment? It is to notify one of the offense with which he is charged, and the elements thereof, that he may properly prepare his defense, and usually when an offense is charged in the language of the statute, this is sufficient. The indictment in this case charged appellant in specific terms that he received stolen goods from Lefty Linnaman, knowing they had been stolen, and brought them into this State, and is sufficient in law to charge this offense, and specifically alleged that the acts committed by appellant were a violation of the laws of the State of Missouri, and if committed by him in this State, would have been a violation of the laws of this State.

The indictment in this case does allege the time and place. It first alleges that on or about the 31st day of October appellant received the property in the State of Missouri, knowing the same to have been stolen, and thereafter on or about the 21st day of November he brought the stolen property into this State. But appellant insists that it was necessary to name the place in theforeign State where the goods were received. This requisite is not stipulated in articles 1431 and 1432 of the Penal Code, and to so hold would be for us to add to the elements of the offense. However, appellant insists that if mistaken in that contention, then as the pleader elected to allege that the goods were received in the County of St. Louis, in the State of Missouri, then it became necessary to prove the allegation as alleged. In the original opinion we showed that the statute (arts. 1431 and 1432) did not require the indictment to state the point within the foreign State where the goods were received, but only that they were received in such foreign State and brought into this State, and the county brought to, to show that such county had venue of the offense, and such allegation not being a requisite of the indictment, same might be rejected as surplusage. In the case of Dent v. State, 65 S.W. Rep., 627, on page 634, this court held: "Redundant allegations, and those which are in no manner necessary to a description of the offense, and which are not essential to constitute the offense, and which can be entirely omitted without affecting the charge against the accused, and without detriment to the indictment, are treated as mere surplusage, and may be entirely disregarded as part of the indictment. Gordon v. State, 2 Texas Crim. App., 154; Burke v. State, 5 Texas Crim. App., 74; Hampton v. State, id., 463; Mayo v. State, 7 Texas Crim. App., 342; Smith v. State, id., 382; Rivers v. State, 10 Texas Crim. App., 177; Gibson v. State, 17 Texas Crim. App., 574; Holden v. State, 18 Texas Crim. App., 91; Moore v. State, 20 Texas Crim. App., 275; McConnell v. State, 22 Texas Crim. App., 354, 3 S.W. Rep., 699, 58 Am. Rep., 647; Osborne v. State, 24 Texas Crim. App., 398, 6 S.W. Rep., 536; Watson v. State, 28 Texas Crim. App., 34, 12 S.W. Rep., 404; Cudd v. State, 28 Texas Crim. App., 124, 12 S.W. Rep., 1010; McLaurine v. State, 28 Texas Crim. App., 530, 13 S.W. Rep., 992; Finney v. State, 29 Texas Crim. App., 184, 15 S.W. Rep., 175; Hammons v. State, 29 Texas Crim. App., 445, 16 S.W. Rep., 99; Taylor v. State, 29 Texas Crim. App., 466, 16 S.W. Rep., 302; Waters v. State, 30 Texas Crim. App., 284, 17 S.W. Rep., 411; McDaniel v. State, 32 Tex.Crim. Rep., 21 S.W. Rep., 684, 23 S.W. Rep., 989; Loggins v. State, 32 Tex.Crim. Rep., 24 S.W. Rep., 408; Williams v. State, 35 Tex.Crim. Rep., 33 S.W. Rep., 1080; Lassiter v. State, 35 Tex.Crim. Rep., 34 S.W. Rep., 751; Webb v. State, 36 Tex.Crim. Rep., 35 S.W. Rep., 380; Jordan v. State, 37 Tex.Crim. Rep., 38 S.W. Rep., 780, 39 S.W. Rep., 110."

Appellant insists that if it was not necessary that the county in the foreign State where the goods were received should be named (and articles 1431 and 1432 show that it was not necessary to do so, as the place is sufficiently alleged where the State is named where the goods were received) yet as they were named, such allegation became descriptive of the offense, and had to be proved as alleged. We do not think such allegation can be said to be descriptive of the offense herein alleged, but if so the proof met the allegation, for while it is shown that the City of St. Louis is a separate and distinct entity from the county, yet Messrs. Sanders and McKenna testify positively that it was generally spoken of and referred to as being within the County of St. Louis, and there was no evidence offered to the contrary. And where the proof, and all the proof, shows this to be true, it was not necessary to submit that issue to the jury. Had appellant offered any testimony that it was not so generally spoken of, understood and referred to, then there would have been an issue raised, and it would have been necessary to submit it to the jury. Polk v. State, 66 Tex.Crim. Rep., 148 S.W. Rep., 311; Pendy v. State, 34 Tex.Crim. Rep.; Bird v. State, 16 Texas Crim. App., 528; Lott v. State, 24 Texas Crim. App., 723, 27 Texas Crim. App., 44. So it is seen that the allegation if it be conceded that it is descriptive and must be proven as alleged, it has been held in this State that if it was so commonly called, referred to and spoken of as alleged, upon proof of this fact this would present no variance. Mr. Wharton in his work on Criminal Law, says: "Variance in criminal law is not now regarded as material unless it is of such substantive character as to mislead the accused in preparing his defense, or would place him in second jeopardy for the same offense," and in the case of Woodward v. Barth, 7 Barn. Cres., 301, it was held a "declaration in the pleadings that the plaintiff delivered a trunk to be put on the coach at Chester, in the County of Chester, was held supported by evidence that it was delivered in the City of Chester, which is a county of itself, separate from the County of Chester at large."

So we hold, as in the original opinion, that it was unnecessary to allege in the indictment the point or place in the State of Missouri appellant received the goods, it being necessary to state only that he received them in that State, and such act was a violation of the law of that State, and he brought them into Texas, and if his acts if done here would constitute a violation of the law, and the allegation of the point or place of reception in Missouri, being an unnecessary allegation, it may and should be treated as surplusage. In the proof, if not alleged, it would not be necessary to make proof of the point and place he received them in Missouri, only that he received them in Missouri. We are also of the opinion that it is not descriptive of the offense, for it is in no sense descriptive of the goods he received, nor did it tend to identify them, and as the point in the State was an unnecessary allegation, nor would it be in anywise descriptive of the State in which he received them. But if it should be held that the place of reception in any manner was necessary or in anywise descriptive of the offense, the proof showing that the place he received them was generally known, referred to and called the place named in the indictment as the place of reception, this would present no material variance, and the proof is sufficient to sustain the allegation. It can not nor is it insisted that he was in anywise misled by such allegation, nor that a plea of former jeopardy would not lie and prevail should it be attempted to prosecute him for the offense alleged. Mr. McKenna testified to seeing Lefty Linnaman in possession of these goods. "I saw Lefty Linnaman and Sam Mintz on the 21st day of November, 1910, in a stable at 2205 North Market Street. Lefty Linnaman was nailing the top on the boxes, preparing to ship the stuff. Sam was in there with him, standing by." David Bloomfield testified he saw appellant in St. Louis in Mayer Katz's yard; that Lefty Linnaman was with him; that appellant admitted it was crooked goods he had there in the yard; that he saw rubber coats, yellow slickers, etc., they being the goods as shown by the evidence and circumstances afterwards found in Texas. He testified that this was the only time he ever saw Lefty Linnaman at Katz's house, and that was the time he heard appellant order Lefty Linnaman to deliver the goods to the storage house. Appellant in his motion for rehearing insists that this possession here shown would come nearer showing him to be the original thief than a receiver of the stolen goods. If this was all the evidence in the record, this contention might be presented with some force, but the evidence discloses that Lefty Linnaman resided in St. Louis, had the reputation of being a professional thief; was engaged in thefts similar to this, and had been convicted since this offense was committed of theft of just such goods; while appellant resided in Texas, and if the State's case is true, was there but temporarily, and if his contention is true, he was not in St. Louis, but in Texas at this time, and considering all the facts and circumstances in evidence, while the indictment charged both theft and receiving stolen property, and the court could have submitted both counts to the jury, vet we do not think the court erred in not submitting the count charging him with theft of the goods, and in submitting the count charging him with receiving stolen goods, knowing they were stolen. And that he knew they were stolen goods is evidenced by his acts after the goods had been received in Cameron, Texas, for upon learning that an investigation was being made in Texas in regard to these goods, he takes them out of his store in Cameron, ships them to Rockdale, giving his name as Gordon. They are then shipped to Taylor, where they are found by Mr. McKenna, identified by Mr. Sanders, and shipped back to Cameron. Here Mr. Sanders asserted his claim to the goods; appellant does not contest this claim, but allows Mr. Sanders to take possession and reship them to St. Louis. Had he not known they were stolen goods he would not have quietly stood by and let Mr. Sanders take them.

While many questions are raised again on the motion for rehearing, and we have thoroughly considered them, we are of the opinion they were correctly disposed of in the original opinion, and it is not necessary to write further.

The motion for rehearing is overruled. Overruled.

DAVIDSON, JUDGE, dissenting.

ON REHEARING. March 25, 1914.