The State stresses its contention that, although it was not necessary that the indictment allege the names of those who stole the property, such allegation in the instant indictment was surplusage and could therefore be disregarded in so far as requiring the State to establish such allegation by proof.
In support of its position, the State cites the New York case of People v. Caswell, 21 Wend. 86, and the South Dakota case of State v. Pirkey, 118 N.W. 1042, which directly support that position.
The State also recognizes that this Court in the cases of Jenkins v. State, 119 Tex.Crim. R., 44 S.W.2d 706, and Murphy v. State, 130 Tex.Crim. R., 95 S.W.2d 133, has adopted the contrary view, to the effect that where the State unnecessarily alleges the name of the thief in an indictment charging receiving and concealing stolen property, it must, in order to convict, sustain that allegation by proof.
The distinction between the two holdings lies in the fact that one construes such allegation as surplusage, while the other construes it as descriptive of the offense.
We remain convinced of the correctness of our position because the allegation of the name of the thief was descriptive of the essential allegation that the property had been stolen.
The State's motion for rehearing is overruled.
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. *Page 322