Appellant again urges that the evidence fails to show his guilt. Further consideration of the facts does not change the conclusion announced originally upon such contention.
In our original opinion the following expression was used:
"Did he (appellant) know or have good reason to believe at the time he purchased the property that it was stolen?"
Appellant says in his motion for rehearing that by reason of the expression quoted he construes the opinion to announce if appellant had good reason to believe that the property was stolen it would justify a conviction of receiving propertyknowing it was stolen. The case was neither tried nor submitted to the jury upon such a theory, nor was it intended to be decided by us on such theory. The trial court specifically instructed the jury that before a conviction could result they must find beyond a reasonable doubt two things: —
"(a) that the property alleged to have been stolen was acquired by theft by some other person; (b) that the defendant knowing it to have been so acquired, fraudulently received the same. If any one of these essential elements is wanting, the defendant can not be convicted and is entitled to be acquitted."
In applying the law the court required the jury to find that appellant "knew that said property was acquired by theft" at the time he received it.
In our original opinion we said: "We think that the facts and circumstances proven, as hereinabove set out, are sufficient to justify the jury's conclusion that appellant knew that it was stolen property." Such is the holding upon which the judgment *Page 51 of affirmance rests. We remain of the opinion that the facts support the judgment and justify the affirmance.
The motion for rehearing is overruled.