
    MEARS v. STATE.
    (No. 9737.)
    (Court of Criminal Appeals of Texas.
    Feb. 17, 1926.
    Rehearing Denied March 24, 1926.)
    1. Criminal law <@=JI 119(2).
    Bill of exception, by which appellant complained of certain question asked witness, which failed to show that witness answered such question, presents no error.
    2. Larceny <$=340 (3) — Full proof of theft held admissible in prosecution for concealing part of goods stolen.
    In prosecution for concealing stolen sugar of value of more than $50, in which indictment charged that 10 sacks were concealed, evidence showing that 26 sacks were stolen held admissible, though state was only required to prove that a sufficient part of them to be worth $50 were concealed by plaintiff.
    3. Criminal law <§=412(2).
    In prosecution for concealing stolen property, incriminating statements made by thief prior to time that goods were stolen held admissible in showing theft.
    On Motion for Rehearing.
    4. Criminal law <§=511 (6).
    Evidence held sufficient, in corroboration of accomplice’s testimony, to sustain conviction for. receiving and concealing stolen sugar taken from grocery store and found in outhouse, pn porch of which accused was sitting.
    Commissioners’ Decision.
    Appeal from District Court, Orange County; V. H. Stark, Judge.
    Doug Mears was convicted, of receiving and concealing stolen property of the value of more than $50, and he appeals.
    Affirmed.
    Dewitt C. Bennett and O. R. Sholars, both of Orange, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty., of Tyler, for the State.
   BERRY, J.

The offense is receiving and concealing stolen property of the value of more than $50, and the punishment is two years in the penitentiary.

By bill of exceptions No. 1, appellant complains at the court’s action in permitting the state to ask the witness Cloud as to whether.the Orange Grocery Company is a corporation. The bill fails to show, that the witness answered this question. No error is shown by this bill.

Appellant also complains at the court’s action in permitting the state to prove that 26 sacks of sugar were stolen. It seems to be appellant’s contention that, because the indictment charges the concealing of only 10 sacks, the state must be limited to this number in making proof of the theft. Appellant’s contention is without merit. It was proper to permit the state to show the amount of sugar that was stolen by Wunch, the party from whom it is alleged the appellant received the stolen property. We think it was entirely proper for the court to permit full proof of the theft by Wunch of the entire amount of sugar taken by him from the alleged injured party, and when the state showed that the appellant was found to have received and concealed any part of said sugar so stolen amounting in value to $50 or over, then the offense was proven provided it was shown that appellant knew that it was stolen at the time that he received and concealed it.

We think no reversible error is shown in the court’s action in ruling on the admissibility of the testimony of the witness Cloud as to what he testified on a former trial of the case. It is undisputed in this record that 26 sacks of sugar were stolen from the corporation for which Cloud was manager, and it is undisputed in this record that appellant received and concealed more than $50 worth of the same.

Bill of exceptions No. 6 also fails to show error, because, as above stated, the state had the right to show that the sugar was stolen by Wunch, and in making this proof it was pertinent to show any incriminating statements that may have been made by Wunch prior to the time of the theft.

This case is before us on a statement of ■facts that shows conclusively the guilt of the appellant, and there is no testimony found in this record in any wise explaining in a manner consistent with his innocence the possession of the sugar in question. The jury has seen fit to give him the lowest penalty provided by law, and, there being no errors disclosed by the record, it is our opinion that the judgment should be in all things affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

LATTIMORE, J.

In his motion for re-

hearing appellant urges that the testimony does not connect him with the theft or concealment of the alleged stolen sugdr; also insisting that it is not shown that he knew the sugar, if found under his charge, to have been the subject of theft; also that the accomplice witness was not- corroborated.

The testimony is short. The manager of the Orange Grocery Company said 26 sacks of sugar were stolen of the value of approximately $7 each. Sixteen sacks of said sugar were found in an old outhouse about six miles north of Orange. No one was living at the place where this sugar was located. “When the party got to the premises appellant and one Wunch were sitting on the porch of the building in which the sugar was located. Eight sacks of the sugar were found in the house where appellant’s mother lived, his wife and sister being at the house at the time. Truck tracks were followed from the Orange Grocery Company’s building to the house of appellant’s mother,’ and from there to the place where the 16 sacks were found. It was in testimony that a truck making such tracks as were thus found was rented about 12 o’clock at night to Mr. Wunch, who was found on the porch with appellant. An accomplice witness testified fully, making out the state’s case against appellant. The above is ample corroboration.

Being unable to agree with any of the contentions made in appellant’s motion, same will be overruled. 
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