Brown v. State , 15 Tex. Ct. App. 581 ( 1884 )

Willson, Judge.

There is but a single question in this case which we deem it necessary to determine, and that is: Under an indictment for theft can the defendant be lawfully convicted •of the offense of receiving stolen property? This question has heretofore been decided by this court in the affirmative. (Parchman v. The State, 2 Texas Ct. App., 228; McCamphell v. The State, 9 Texas Ct. App., 124.) But since those decisions a similar' case was before this court in Huntsman v. The State, 12 Texas Court of Appeals, 619, which was a case where the defendant, under an indictment for theft, was convicted of embezzlement. In an elaborate opinion in that case, Judge Hurt reviews the authorities, and concludes that the conviction was not by “ due course of the law of the land,” and that Article 714 of the Code of Criminal Procedure, in so far as it provides that theft shall include embezzlement, is in contravention of the Constitution both of this State and of the United States.

We perceive no difference in principle between the-question determined in that case and the one presented in this case. If the doctrine of the Huntsman case is correct, we think it must apply to and be decisive of this case. The constituents of the' two offenses of theft and receiving stolen property are as essentially different as are those of theft and embezzlement. In theft, the accused is guilty of the fraudulent taking of the property of another, without his consent, and with the intent to deprive him of the value thereof, and to appropriate the-same to the use and benefit of the person so taking; while the offense of receiving stolen property is constituted by receiving-property which has been already fraudulently taken from the-owner in such manner as to constitute theft, knowing the same-to have been so acquired. A theft must be perfected before that of receiving stolen property can be perpetrated, and the receiver of the stolen property must be another person than the thief.. (Penal Code, Arts. 724-743; Foster v. The State, 39 Ala., 233.)

After much investigation and reflection upon the question, we-remain of the opinion that the principles announced in the Huntsman case, and the conclusions there arrived at, in so far as they bear upon the question before us, are sound and supported by reason and authority. We therefore re-affirm the opinion in that case, and refer to it for a full discussion of the question, and' an exhaustive review of the authorities bearing upon it. With that opinion before us, it would be a work of supererrogation to enter upon a further elaboration of the subject, as we could add nothing of importance to what it contains.

We hold that the conviction in this case is illegal, and the-judgment is reversed and the cause remanded.