There were five counts in the indictment preferred against the defendant; the first being one for theft, and the other four charging appellant with receiving stolen property, knowing the same to have been stolen. The verdict of the jury was: "We, the jury, find the defendant guilty as charged, and assess his punishment at confinement in the penitentiary for two years." The judgment tendered upon this verdict was one finding the defendant guilty of fraudulently receiving stolen property, knowing the same to have been stolen.
It is insisted on this appeal that the verdict and judgment must have been predicated upon the second count in the indictment; and it is further insisted, that if such be the case, the verdict and judgment can not because the said second count is fatally defective, in that it fails to state or allege in terms the date when and the place and county in which the said offense was committed. The date and the county were properly alleged in the first count of the indictment, which was the count for theft. This being so, it was unnecessary to repeat the date and county *Page 8 in the second count. In the case of Hutto v. The State, 7 Texas Court of Appeals 44[7 Tex. Crim. 44], where, in the second count of an indictment, the name of the month was written "January," and in the first count, which was dismissed, it was correctly spelled, it was held that the motion in arrest of judgment was correctly overruled; and the case of Wills v. The State, 8 Missouri, 52, was cited, wherein it was held, that where a nolle prosequi to the first of two counts of an indictment was entered, and the time of committing the offense was only shown by reference to the first count, the defendant might be tried and convicted on the second count. Boles v. The State, 13 Texas Ct. App. 650[13 Tex. Crim. 650]. See, also, Regina v. Waverton, 2 Lead. Crim. Cases (2d ed.), 157. The particular objection to the second count, as above stated, is not well taken. But, even if it were well taken, we do not concur with counsel for appellant in his assertion that the verdict and judgment were necessarily predicated upon the second count. The verdict might as well have been based upon one or more of the succeeding counts, which also charged receiving stolen property.
Again, it is objected to the verdict that it is too general in its character, and could apply as well to the charge for theft as to the other counts of receiving stolen property. And in this connection it is claimed that the verdict is defective, because, if based upon the first ground alleged — the theft of the property — then there was no charge of the court which authorized such a verdict for theft, inasmuch as the charge simply defined theft, without applying it to the facts of the case, and without instructing the jury as to the penalty. And again, in this connection it is insisted that, after the testimony had been adduced, the court erred in declining and refusing to make the prosecution elect upon which count a conviction would be claimed, and whether a conviction would be sought for theft or only for receiving stolen property. We are of opinion that the supposed errors complained of are not maintainable. The charge of the court simply defined theft, but did not apply the law thereof to the facts of the case, nor authorize the jury to return a verdict based upon the proof of the theft of the animal. In his charge the court only applied the law to receiving and concealing stolen property under the other counts in the indictment. That he should have defined theft was necessary in order that the jury might intelligently act with reference to the receiving and concealing of property, knowing it to have been stolen. The fact that he did not submit the question of theft to the jury as an independent crime, to be ascertained by them from the facts, in our opinion, manifests that he intended to limit and restrict their investigations to the charges of receiving stolen property, knowing the same to have been stolen. Under this charge the jury could not have found the defendant guilty under the first count, which was for theft, because there was no penalty provided or prescribed by the court upon which they could have acted, and the court did not apply the law of *Page 9 theft directly to the facts before them, and authorize them to find a verdict of theft. His failure to do so was tantamount to a withdrawal of the charge of theft from the jury, and was tantamount to an election as between theft and receiving stolen property. It had the same effect as though the court had required the prosecuting attorney to say whether he would elect as between theft and receiving stolen property.
During the trial the State proposed to prove the receiving of other stolen property by the defendant than that charged in the indictment. This evidence was offered for the purpose of showing the intent of the defendant with reference to receiving the cattle mentioned in the indictment. This testimony was objected to by the defendant, because the cattle had not been taken about the same time and place as that charged in the indictment, and because it had not been shown that the defendant received said cattle at the time and place and from the same parties from whom he had received the one head of cattle alleged in the indictment. It is further shown by the qualification of the judge to this bill of exceptions, that after the State closed its evidence, this testimony, as objected to by the defendant, was withdrawn from the jury, and they were instructed by the court that the defendant had not been connected with the said cattle, and they would not consider it for any purpose.
We are of opinion that the testimony was admissible in the first instance, and that the defendant can not complain, inasmuch as the court withdrew the testimony from the consideration of the jury, and told them not to consider it for any purpose. We are of opinion that the testimony should have been admitted, as it tended to prove the fraudulent intent upon the part of the defendant with respect to receiving the one head of cattle named in the indictment, and with knowledge on his part at the time he received said yearling that it was stolen property. Harwell v. The State, 22 Texas Ct. App. 251[22 Tex. Crim. 251]. It also tended to show a systematic plan on defendant's part to commit the crime charged. Hennessy v. The State, 23 Texas Ct. App. 340[23 Tex. Crim. 340].
It is shown by the evidence that the defendant in this case had contracted to deliver a lot of cattle in the Indian Territory; that he had employed several parties to procure cattle to make up this herd, and among others was Lee Reynolds, the party from whom he is charged to have received the stolen cattle involved in this transaction. Quite a number of these cattle, when received by him, had their brands burnt, and among the number those embraced in this bill of exceptions, and claimed to have been received by him at a different time and place from that mentioned in the indictment. Though the animals may have been received by him at different times, or different days, still we are of opinion that the evidence was legitimate to show defendant's intent, as well as knowledge on his part that they were stolen property. All these animals were subsequently found, by parties owning or claiming them, in Owens' pasture in *Page 10 the Indian Territory, where they had been placed by Owens after the delivery of same to him by defendant. It is further shown by the testimony, that defendant knew that some of these parties, and especially Lee Reynolds, the party from whom he claims to have purchased a large number of these cattle, had neither cattle of his own, nor money with which to buy same to furnish him, in order that he, defendant, might comply with his contract with Owens. He says in his testimony that there were a great many different brands on the cattle purchased from Lee Reynolds; and in giving the bill of sale to Owens for the cattle delivered by him, under his contract, it is shown that he did not embrace within this bill of sale a description of the animal, nor the mark and brand of the animal, alleged to have been stolen in this prosecution, though it was proven that this particular animal was delivered at the same time and place. In so far as the Coon Miller cattle are concerned, which were also found in Owens' pasture among the cattle delivered by defendant to Owens, instead of giving the brands upon these cattle, which was WM, he gave the brands in the bill of sale as WE. The brands on the WE cattle were all freshly burnt at the time defendant received them. We are of opinion that the evidence in this case is amply sufficient to sustain the conviction of receiving stolen property, knowing the same to have been stolen; and we are further of opinion that the charge of the court presented the law fully with regard to the facts elicited upon the trial. Having found no reversible error, the judgment is affirmed.
Affirmed.
HURT, J., absent.