
    BALDWIN v. STATE.
    (No. 3529.)
    (Court of Criminal Appeals of Texas.
    April 14, 1915.)
    1. Larceny <&wkey;80 — Information— Description of Property — Sufficiency.
    Under Code Cr. Proc. art. 458, providing that, when it is necessary to describe property in a complaint’ and information, a general description of it by name, kind, quality, number, and ownership is sufficient, a complaint and information alleging that accused unlawfully took from the possession of prosecutor one suit of clothes of a specified value sufficiently described the property stolen.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 64-75, 99; Dec. Dig. <&wkey;30.]
    2. Larceny &wkey;^29 — Complaint and Information-Sufficiency.
    A complaint and information charging-theft, which does not allege that accused fraudulently took the property 1'rom the alleged owner, is fatally defective.
    [Ed. Note. — For other cases, see Larceny Cent. Dig. §§ 60, 63; Dec. Dig. &wkey;?29.]
    3. Larceny <&wkey;75— Evidence — Instructions.
    Where accused, on trial for theft, showed that, when first charged with the offense, he claimed that he bought the property from a certain third person for a specified price, the court should charge that if accused did not steal the goods, but bought’ them from the thief knowing them to be stolen, he was not guilty of theft, ■ which was a separate offense.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 190, 198; Dee. Dig. &wkey;75.]
    Appeal from Potter County Court; T. W. McBride, Judge.
    W. F. Baldwin was convicted of petty theft, and he appeals.
    Reversed, and cause dismissed.
    James N. Browning and Rollie H. Scales, both of Amarillo, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant appeals from a conviction for petty theft.

The complaint and information allege that on February 22,1915, appellant “did then and there unlawfully take from the possession of J. W. Logue certain corporeal personal property, to wit, one suit of clothes, of the value of $10.”

The court did not err in overruling appellant’s motion to quash on the ground that the alleged stolen property was not described with sufficient certainty. The-statute (C. C. P. art. 458) prescribes that, when it becomes necessary to describe property of any kind in an indictment or complaint and information, a general description of it by name, kind, quality, number, and ownership, if known, shall be sufficient. The many decisions of this court under this statute hold the description of said property was sufficient.

However, appellant, for the first time, in this court, contends that the complaint and information are fatally defective in that they do not charge, in the terms of the statute, that the appellant “fraudulently” took the property from the alleged owner. This is true, and is a fatal defect in the pleadings, and necessarily results in the reversal and dismissal of the ease. Watt v. State, 61 Tex. Cr. R. 662, 136 S. W. 56; section 1479, White’s Ann. P. C., and cases there cited.

In view of another prosecution, we will pass upon some other questions raised. When appellant was first charged with having stolen the suit of clothes, he at once claimed that he bought them from a certain party, paying him $2 therefor. He asked special charge No. 3, on the possession of recently stolen property and his explanation of how he came in possession. This charge should not have been given, hut the court should have charged thereon in substance as held in Wheeler v. State, 34 Tex. Cr. R. 350, 30 S. W. 913, and other cases. See section 1518, White’s Ann. P. C.

The court should have given his charge No. 2 in substance at least, for if appellant himself did not actually steal the suit, but bought it from the thief, knowing it to be stolen, he would not be guilty of the theft, but he would be guilty of receiving it. Buying stolen goods, knowing them to be stolen, is a separate offense from that of the theft of the goods. McAfee v. State, 14 Tex. App. 675; White’s Ann. P. C. § 1510, p. 616.

The court should not have given appellant’s requested charge peremptorily instructing the jury to find him not guilty, because the state’s evidence was amply sufficient to show his guilt, if believed by the jury.

For the fatal defect In the complaint and information, the judgment is reversed, and the cause dismissed. 
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