The State attaches to its motion for rehearing a certified copy of the complaint in this case, which shows to be a good complaint, and to contain the words stated in our former opinion to have been omitted from the complaint, thereby making it defective. There is also an affidavit of the county clerk of Somervell county appended, statting that he prepared the transcript appearing in the record, and that the omission of said words from the complaint was a mistake on his part.
Considering the case on its merits, we note that 110 posts of Mr. Gresham were stolen on the night of August 3, 1933. Appellant was found on a truck near Cleburne that same night in possession of said posts. If he then made any explanation of his such possession, it does not appear. On this trial he testified that he bought the posts from one Ray Gartrell at five cents each, and that Gartrell took appellant's truck from his residence, went out and got the posts and hauled them in and turned them over to him, and that he, appellant, then decided that he would take said posts to Cleburne that night and later sell them. Appellant's wife and nephew corroborated his story. Gartrell denied selling the posts to appellant, but testified that pursuant to an agreement between himself and appellant he, Gartrell, hauled the posts from Gresham's place, brought them to Glen Rose where appellant took charge of them, the agreement being that appellant should sell them and the two would divide the money. The possession by appellant at the time of his arrest near Cleburne of the recently stolen property, would sufficiently make out the case, aside from the testimony of the accomplice. There are no exceptions to any matter of procedure in the record. Appellant asked a special charge, which was refused, but took no exception to such refusal. *Page 489
The State's motion for rehearing is granted, the judgment of reversal is set aside, and the judgment of the trial court is now affirmed.
Affirmed.