
    MAYFIELD v. STATE.
    (No. 6471.)
    (Court of Criminal Appeals of Texas.
    Nov. 23, 1921.)
    1. Receiving stolen goods <&wkey;7(3), 8(1)— Allegation and proof of name of person from whom property is received necessary.
    It is necessary, in an indictment for fraudulently receiving stolen property, to name the person from whom the property was received, unless his name is unknown, in which event the indictment may charge that the name is unknown; but upon the trial the burden is upon the state to prove that the name of the person from whom the property was fraudulently received was, in fact, unknown to the grand jury.
    2. Receiving stolen goods &wkey;>7(3) — Conviction reversed because indictment did not name person from whom property was received.
    A conviction for fraudulently receiving stolon property must be reversed where the person from whom the property was received was not named in the indictment, where it affirmatively appears that knowledge was available to the grand jury that accused claimed to have received the property from a certain person and was at the time of his arrest in possession of a bill of sale of it, and there is a complete absence of testimony showing that the grand jury made any effort to ascertain, or was, in fact, without knowledge of, the name of the person from whom accused had received the property.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    B. W. Mayfield was convicted of fraudulently receiving stolen property, and he appeals.
    Reversed and remanded.
    Mays & Mays, of Fort Worth, for appellant.
    K. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, R. J.

The conviction is for fraudulently receiving stolen property; punishment fixed at confinement in the penitentiary for a period of three years.

The indictment contains three counts; one charging appellant with theft of property from one J. J. Thompson, one charging him with theft of property from Tom Murray, and one charging him with fraudulently receiving property from some person whose ape was unknown to the grand jury.

It is upon the last-named count that the conviction rests. It is necessary in the indictment to name the person from whom the property was received, unless his name is unknown, in which event the indictment may charge that the name is unknown; but upon the trial the burden is upon the state to prove that the name of the person from whom the property was fraudulently received was, in fact, unknown to the grand jury.

When found by the sheriff in possession of the stolen property, appellant claimed to have received it from one Peak. This was before the indictment was found. Appellant also claimed that Peak had given him a bill of sale for the car and at the time exhibited the bill of sale to the officers and put it in their .possession. Peak, who was present, was also arrested, and one of the state’s theories was that the appellant acted together with Peak in the theft of the car. The jury rejected this theory and convicted appellant of receiving the property.

Appellant testified upon the trial that he received the property from Peak, and claims to have received it without knowledge that it was stolen. The bill of sale which Peak had made to the áppellant before the arrest, and which remained in possession of the officers from the inception of the prosecution, was introduced in evidence, as was also the testimony of the notary who wrote the bill of sale and before whom Peak signed it. The state introduced no testimony to show ■that the grand jury made any Investigation concerning the name of the person from whom the appellant had received the property, and, as we understand the authorities, the judgment must be set aside, for the reason that it is made to affirmatively appear tliat knowledge was available to the grand jury that appellant claimed to have received the property from Peak and was, at the time of his arrest, in possession of the bill of sale to it, and, further, because of the complete absence of testimony showing that the grand jury made any effort to ascertain, or was, in fact, without knowledge of, the name of the person from whom the appellant had received the stolen property. Jorasco v. State, 6 Tex. App. 238; Cock v. State, 8 Tex. App. 665; Williamson v. State, 13 Tex. App. 514; Brewer v. State, 13 Tex. App. 456; Atkinson v. State, 19 Tex. App. 462; Langham v. State, 26 Tex. App. 539, 10 S. W. 113; Yantis v. State, 144 S. W. 950; Puryear v. State, 28 Tex. App. 75, 11 S. W. 929; Kimbrough v. State, 28 Tex. App. 367, 13 S. W. 218; Shockley v. State, 38 Tex. Cr. R. 458, 42 S. W. 972; Trinkle v. State, 225 S. W. 755, 88 Tex. Cr. R. 233; Harper v. State, 88 Tex. Cr. R. 354, 227 S. W. 190; Kahanek v. State, 83 Tex. Cr. R. 19, 201 S. W. 994.

From what has been said, it follows that the judgment must be reversed and the cause remanded. 
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