A strong appeal is made to us to vary the established rules of this court, and to depart from all the precedents in view of what is set up as the merits of this defense. If the rules be right and the precedents be sound, the unwisdom and injustice of a departure in a particular case would be apparent. This court cannot make fish of one and flesh of another. If we were willing to set the law aside in one case, manifestly we could not justify our failure to set it aside in all cases. However, the facts in this case are not such as to lead us to conclude that we have here a youth of such innocence and lack of guile, as to greatly appeal to this court. We observe that the facts show practically without dispute that appellant and two other boys discussed the theft of a particular car, and that appellant and one of the boys were afraid to take the car, but when it was taken by the third boy, these two willingly got into the car and rode from Martin County to Pecos in said stolen property. We perceive little, if any, difference in the turpitude of one who is not willing to first lay hold upon the property of his neighbor, but at a distance watches another actually take same into his possession, and then in a few yards or blocks unites with the actual taker in the further removal of the property.
Appellant makes the point in his motion that the indictment charging the receiving and concealing of stolen property, alleged that same was received from some person to the grand jurors unknown — and it is claimed there is no testimony in the record supporting the proposition that the grand jury made any effort to ascertain the name of the party from whom appellant so received said property. We have carefully examined the record and find that no witness testified that he knew the name of the party from whom appellant received the stolen car. Appellant's confession does not name such party. The sheriff and night watchman at Pecos who recovered the car and saw three parties in it, and one of whom arrested appellant and a companion — neither testified to knowing the name of the party from whom appellant received said car. In fact, they denied knowing it *Page 71 either at the time of the trial or when they were before the grand jury. Mr. Zimmerman, Sheriff of Martin County, said that about ten days after this theft a boy was brought from Pecos, supposed to be the third party engaged in this theft, but that appellant and his companion both denied positively that this boy was implicated, and that he released said boy. He said he did not know the name of the party from whom appellant got the car, either at the time of the trial or when before the grand jury.
Appellant insists that Williams v. State, 153 S.W. 1136, should be held authority for reversing this case. We do not so understand that case. It was laid down by this court in Yantis v. State, 144 S.W. 947, that unless the record in some way discloses that witnesses who were before the grand jury, or who gave testimony on the trial, knew the name of the alleged unknown person from whom the accused received the stolen property, or unless it is shown affirmatively that the grand jury, by the use of more diligence than they exercised, could have ascertained the name of such person, no error would appear. This case is followed by Shipp v. State, 209 S.W. 657, and in our opinion announces a correct proposition of law.
The other contentions made by appellant were discussed and we think correctly decided in the original opinion.
The motion for rehearing will be overruled.
Overruled.