The offense is receiving and concealing stolen property of the value of more than $50.00, and the punishment is two years in the penitentiary.
By bill of exceptions No. 1, appellant complains at the court's action in permitting the state to ask the witness Cloud as to whether the Orange Grocery Company is a corporation. The bill fails to show that the witness answered this question. No error is shown by this bill.
Appellant also complains at the court's action in permitting the state to prove that twenty six sacks of sugar were stolen. It seems to be appellant's contention that because the indictment charges the concealing of only ten sacks that the state must be limited to this number in making proof of the theft. Appellant's contention is without merit. It was proper to permit the state to show the amount of sugar that was stolen by Wunsch, the party from whom it is alleged the appellant received the stolen property. We think it was entirely proper for the court to permit full proof of the theft by Wunsch of the entire amount of sugar taken by him from the alleged injured party and when the state showed that the appellant was found to have received and concealed any part of said sugar so stolen amounting in value to $50.00 or over, then the offense was proven provided it was shown that appellant knew that it was stolen at the time that he received and concealed it.
We think no reversible error is shown in the court's action in ruling on the admissibility of the testimony of the witness Cloud as to what he testified on a former trial of the case. It is undisputed in this record that twenty-six sacks of sugar were stolen from the corporation for which Cloud was manager and it is undisputed in this record that appellant received and concealed more than $50.00 worth of the same.
Bill of exceptions No. 6 also fails to show error because as above stated the state had the right to show that the sugar was stolen by Wunsch and in making this proof it was pertinent *Page 495 to show any incriminating statements that may have been made by Wunsch prior to the time of the theft.
This case is before us on a statement of facts that shows conclusively the guilt of the appellant and there is no testimony found in this record in any wise explaining in a manner consistent with his innocence the possession of the sugar in question. The jury has seen fit to give him the lowest penalty provided by law and there being no errors disclosed by the record, it is our opinion that the judgment should be in all things affirmed.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING