Appellant insists in his motion that the testimony did not demonstrate the use of any diligence on the part of the grand jury to ascertain the name of the party from whom it is alleged appellant received the alleged stolen *Page 626 property, for the receiving of which he stands convicted in this case. Neither our statute nor the authorities hold that it is necessary for the evidence to so show, and unless there be an issue made by the accused in the development of the case upon this proposition, and it be shown that reasonable diligence was not in fact used, we would not feel called upon to reverse the case, when the evidence showed, as in this case, that the grand jury did not know the name of such party. The grand juror Luck testified in positive terms in this' case that the grand jury did not know the name of the party from whom appellant received the car. Neither by the introduction of any testimony, nor by a special charge seeking to have the jury so told, nor by exception to the charge of the court as given, did appellant present, or seek to have passed upon, — the issue of the diligence used by the grand jury in this regard. See McCarty v. State,36 Tex. Crim. 135; Link v. State, 73 Tex.Crim. Rep.. In the case of Martin v. State, 189 S.W. 262, cited in appellant's motion, the question of diligence used by the grand jury was made an issue in the case.
Appellant raises the question as to the sufficiency of the testimony to show him guilty of receiving and concealing the automobile in question. There is no doubt from the facts but that appellant was found in possession of a car which had been theretofore stolen. He claims to have bought it from a man named Johnson. Johnson testified denying this claim. That appellant either stole the car himself or got it from some other person after it had been stolen, is not disputed.
We do not find in the record any exception to the charge given, or any special charge requested seeking to have the jury determine as between the two offenses charged in separate counts in the indictment, — both of which were submitted to the jury, — further than the fact that the court submitted both counts and told the jury to find appellant guilty of theft if the facts established such offense, and if the jury found from the facts that appellant was not guilty of theft, but believed from the facts in the case that he was guilty of receiving and concealing stolen property, they might find him guilty of that offense. The verdict of the jury reflects their judgment upon the matters thus submitted. We are not able to say that there are no facts in the case justifying the jury in their conclusion, and supporting the conviction of receiving and concealing stolen property.
The motion for rehearing is overruled.
Overruled. *Page 627