Appellant insists that his motion to quash the indictment should have been sustained, and that we erred in not so holding in our original opinion. The point against the indictment was, — that after alleging that the automobile in question was received by appellant from some person to the grand jurors unknown, the indictment should have gone further and set out that the grand jury could not by reasonable diligence and investigation have ascertained the name of such person. The exact point was decided against appellant's contention in Melton v. State, 56 S.W. 67, and the proposition there laid down is still the law in this State. We find nothing in Morgan v. State, 80 S.W.2d 975, cited by appellant, contrary to the above holding. The question there discussed was the failure of the State to make proof of the fact that reasonable diligence was used by the grand jury in an effort to ascertain the name of such party from whom the accused received the property.
Appellant also urges that it was error for the court below to fail to instruct the jury that the testimony of witness Wooten was as a matter of law that of an accomplice; or at least in not submitting the issue to the jury as to whether Wooten was such accomplice. We have examined Wooten's testimony, and find neither in same or that of any other witness anything to even suggest that Wooten had knowledge that the car in question was stolen, and in the absence of such testimony no such charge was demanded. The only thing reflecting on Wooten, if same does, is that on the day the alleged stolen car was burned by appellant, Wooten went with appellant in another car to and beyond the point of burning. Appellant as a witness testified concerning this trip fully, admitting all the facts sworn to by Wooten but nowhere ascribed to Wooten any part in or knowledge of appellant's plan in making the trip, insofar as the burning of the car was in contemplation. Nor does he ascribe to Wooten any part of the planning of the trip, or any *Page 121 knowledge of the fact that he, appellant, was making it for the purpose of destroying the car. That Wooten had not disclosed what he had seen appellant do to and with the car, after its destruction, would not of itself make him an accomplice.
In addition to all that has been said in this connection both here and in our former opinion, we observe that, according to his own sworn admission when a witness herein, appellant burned the alleged stolen car which he had in possession, — after he admittedly found out that same was stolen. In the cases of Falcone v. State, 84 Tex.Crim. Rep.; Kahanek v. State, 83 Tex.Crim. Rep., and Rutherford v. State,85 Tex. Crim. 7, this court said that if one receives stolen property without knowing it to be such, and thereafter becomes aware that it was so stolen, following which he conceals or destroys the property with the intent to aid the thief or deprive the owner of its value, — he is guilty of concealing stolen property. In the instant case appellant said that when he acquired the property he got it so cheap he knew there was something wrong with it; and unquestionably when he found out that the officers were looking for the car as a stolen automobile, thereafter he took it away in the nighttime many miles and burned the car, which would clearly bring him within the rules laid down in the cases above mentioned.
As a matter of fact, the owner of this car testified that it was stolen in Houston, Texas, on the night of October 31, 1934. If the facts relied on by appellant as raising an innocent connection on his part with the car be true, said car appeared the next morning in the possession of another, a stranger to appellant, in Panola County, Texas, located in the northeastern part of the State, a long distance from Houston, and that appellant that day gave said unknown party $100.00 in cash for the car, and agreed to pay an additional $350.00, which he says the unknown party told him was against the car and in the hands of owners of said debt whose names and location appellant did not remember. There are some circumstances in the case that make it more regrettable than the ordinary felony, but we find nothing in the record leading us to believe that the former opinion should be disturbed.
The motion for rehearing will be overruled.
Overruled. *Page 122