
    SHIPP v. STATE.
    (No. 5327.)
    (Court of Criminal Appeals of Texas.
    Feb. 26, 1919.)
    1. Receiving Stolen Goods &wkey;>7(3) — -INFORMATION — DESCRIPTION OF THIEF.
    An information for receiving stolen property, alleging that person from whom goods were received was unknown, was insufficient, where officers knew from whom goods had been received, or had reasonable grounds for so believing, under Pen. Code, art. 1349.
    2. Receiving Stolen Goods <&wkey;7(l) — INFORMATION— SUFFICIENCY.
    An information describing stolen goods .as the property of G. “which had been theretofore acquired” by some one unknown to affiant, and in such manner that such acquisition was brought within the term “theft,” was insufficient, under Pen. Code, art. 1349, in that it did not charge that defendant received goods from any one.
    Appeal from Tarrant County Court; Jesse M. Brown, Judg;e.
    Thelma Shipp was convicted of receiving and concealing stolen property, and appeals.
    Reversed and remanded.
    R,. H. Smith,’ of Ft. Worth, for appellant.
    E. A. Berry, Asst. Atty. Gen., for- the State.
   DAVIDSON, P. J.

Appellant was charged by complaint and information in the first count with theft, and in the second with receiving and concealing stolen property. The ease was submitted on the second count, and conviction occurred under it.

Omitting formal parts, the complaint and information charge that appellant—

“did then and there unlawfully and fraudulently receive and conceal certain corporeal property, to wit, two pair of shoes, the same then ^id there being the property of and belonging to G. B. Goodspeed, and being then and there of the value of $25, and which said property had theretofore been acquired by some person to this affiant unknown in such planner as that the acquisition of the same comes within the meaning of the term ‘theft’; the said Thelma Shipp then and there well knowing the same to have been so acquired, at the- time he received and concealed the same aforesaid, against the peace and dignity of the state.”

It is unnecessary to notice but one question, and incidentally another as presented by the record. In the motion in arrest of judgment the question is raised that the complaint and information will not sustain the conviction for the reason that it was known before the filing of the complaint and information that appellant had received the goods from Harold Miller, therefore the allegation alleging a receipt from unknown persons was fatal to the affidavit and information. The complaint is signed and sworn to by L. T. Ladd. We are of opinion that the contention of appellant is sustained by the record. It is shown by the defendant’s testimony that he was close to Harold Miller when Miller was arrested by the police, but was not -aware why he was arrested. Ascertaining subsequently that he was arrested with reference to the shoes in question, and officers were looking for him, appellant went to the city hall and saw the officers and told them about the shoes.

“I told them that they would find one pair at the barbershop in the possession of witness Ollie Warren, and that I had sold another pair to witness Graham. I did not know witness Graham’s name at that time. I only knew him as ‘Dad,’ and I told them I had sold them to ‘Dad,’ but that I did not know where he lived, nor where he worked. But.I told them all I knew about him, and where I got the shoes. I bought them from Harold Miller and sold them to witness Graham and Warren, when I found they would not fit my sister. I did not know anything about the shoes having been stolen, and did not know they were stolen shoes; all I knew about them was that Miller told me about buying them from a white man for his sister, and that they would not fit, and he sold them to me in my room at 9 a. m. on the day I sold them to Graham and Warren.”

Further testifying he says:.

“I went to tell the officers what I knew about them after- I had seen Miller arrested- and I heard the officers were looking for me. I told them all I could as to where they could find the shoes I got. I have never been arrested charged with theft. * * * I saw Miller arrested. I did not know why he was arrested until after I wént to the city hall and saw the officers, and then I heard of it.”

The question is raised, in connection with other testimony, that these matters were called to the attention of the officers, and it was known at the time of and before the complaint was filed that the property had been in the hands of Harold Miller and transferred to appellant; at least this evidence goes to prove that condition of affairs. If 1;he state knew at the time of taking the complaint, or had reasonable grounds for so believing, it should have charged appellant with receiving the property from Harold Miller. If there was an issue as to whether they knew or not, then two counts could have been inserted, one for receiving the goods from some person unknown, and the other from Harold Miller. The authorities all seem to bear out the above statement as the law. See cases collated by Mr. Branch in his Ann. P. C. p. 1367.

There is another serious question presented by the complaint as we understand its reading and effect. Appellant is charged with having received and concealed certain property, to wit, two pair shoes, alleged to be the property of Goodspeed, which had been theretofore acquired by some one unknown to af-fiant, and in such manner thai such acquisition was brought within the term “theft.” As we understand the complaint it does not charge appellant with receiving the stolen property from any one. It does charge that he received stolen property and concealed it. It does charge that the property had been stolen, and by some one unknown to affiant, but we do not understand that this complaint charges appellant with receiving the property from the unknown person. It is necessary in charging this offense to allege the name of the party from whom the accused received the property if known, and if unable to specify the party from whom it was received, then it may be alleged that he, was unknown. But there must be an allegation either one way or the other, or, if necessary, both, to meet emergencies, that appellant did receive it from somebody. It is not sufficient to simply allege that he received and concealed the stolen property. It must go further and allege that he received it from some party if known, and if not, then from some party unknown. The authorities are fully collated by Mr. Branch in his Ann. P. 0. p. 1367. This has been the subject of a great many decisions. Among the early cases see Jorasco v. State, 6 Tex. App. 238; Jorasco v. State, 8 Tex. App. 540. See, also, McKay v. State, 49 Tex. Cr. R. 118, 90 S. W. 653; Williams v. State, 69 Tex. Cr. R. 163, 153 S. W. 1136. This rule is also laid down arid aptly stated by Mr. Branch in his Ann. P. C.:

“If there is nothing in the evidence to suggest that the name of the person from .whom defendant received the property was known to the grand jury, or that it could have been ascertained by them, proof that the witnesses did-not know such name is sufficient to support the allegation that such person was unknown.”' Yantis v. State, 65 Tex. Cr. R. 566, 144 S. W. 947.

It is also laid down by the same author:

“If the evidence makes it apparent that the grand jury knew or could have ascertained by the use of reasonable diligence the name of the person from whom the property was received, a-conviction will not be sustained if the allegation is that such person was unknown.”

Under article 1349, P. C., the name of the person from whom the defendant received the stolen property must be stated if known. It is also stated by the same author, on page-1365 of his Ann. P. C., that ownership should be alleged as in theft, and the indictment should allege the name of the person from whom the property was received, or should allege that such person is unknown, citing State v. Perkins, 45 Tex. 10; Brothers v. State, 22 Tex. App. 462, 3 S. W. 737; McKay v. State, 49 Tex. Cr. Rep. 120, 90 S. W. 653.

, As we understand this information, it does nót allege, or undertake to allege, from whom appellant received the property. This should have been stated.

For these reasons the judgment is reversed, and the cause remanded. 
      <&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     