Bunch v. State

ON MOTION FOR REHEARING.

MORROW, Presiding Judge.

In a forceful motion for rehearing, appellant’s counsel insists that the conviction should not be permitted to stand for the reason that the proof shows beyond question that the offense committed was theft. Appellant was convicted under an indictment in separate counts: In the first, with theft; in the second, with receiving and concealing stolen property.

The appellant entered a plea of guilty to the second count and thereby established his guilt of receiving and concealing stolen property. Therefore, no evidence was necessary to prove his guilt. The necessity for the evidence arose only to enable the jury to determine the penalty to be assessed. The state introduced the testimony of Tommie Jameson, a 12-year-old boy, who stole a watch which belonged to Jimmie Bynam. Jameson declared that he stole the watch at the appellant’s suggestion and delivered it to him. The watch was found in possession of the appellant and identified by Bynam as the watch which he had lost. There is exhibited in the record no evidence showing how the appellant came into the possession of the watch save by the testimony of Jameson which, being uncorroborated, was inadequate under the terms of article 718, C. C. P., to prove that the appellant was guilty of theft. On the contrary, the evidence against the appellant of receiving the stolen property was definite. Bynam’s watch, having been stolen, was found in the possession of the appellant soon after the theft. No explanation of his possession was made. See article 1430, Vernon’s Ann. Tex. P. C., vol. 3, p. 198, illustrating the law *549controlling when one accused of fraudulently receiving stolen property, when found in possession of it, offers no reasonable explanation of his right to its possession. In the court’s charge the jury was told that “defendant has pleaded guilty to the charge of fraudulently receiving and concealing stolen property * * * as charged in the second count of the indictment,” etc. The forms of verdict were, “We the jury, find the defendant, Argus Bunch, guilty of fraudulently and knowingly receiving stolen property of the value of $50.00 as charged in the second count of the indictment and as pleaded by him,” etc. The remainder of the forms relate to the penalty and suspended sentence in event such was recommended. As the case came before the trial court the trial judge properly instructed the jury to find the appellant guilty of the offense of receiving stolen property. The action of the court in submitting the second count was tantamount to an election by the state to rely upon that count. See Vernon’s Ann. Tex. C. C. P., vol. 1, p. 330, art. 417, note 36. % There being evidence to support the second count and there being no objection at the time to the submission of that count, and the plea of guilty being thereto, the action of this court in sustaining the conviction should be upheld.

The motion for rehearing is overruled.

Overruled.