
    BARNES v. STATE.
    (No. 10049.)
    (Court of Criminal Appeals of Texas.
    March 31, 1926.
    Rehearing Denied June 9, 1926.)
    1. Receiving stolen goods <&wkey;>7(6) — Though indictment charges receiving stolen property from unknown persons, conviction may be had on finding of receipt from one.-
    Indictment charging receiving of stolen property from unknown “persons” does not require, for conviction, finding that it was received from more than one; rule making the singular include the plural and the plural the singular applying.
    2. Criminal law <&wkey;l 137(2).
    Defendant may not complain of court’s answer to jury’s question, it having been given at suggestion of his counsel, and his special charge answering it having been offered thereafter.
    On Motion for Rehearing.
    3. Receiving stolen goods &wkey;>8(3).
    Circumstantial evidence held to sustain conviction of receiving stolen property, an automobile.
    4. Criminal law t§=j|l2(9) — On prosecution for receiving stolen property, defendant’s connection therewith need not be shown to have begun in county where indictment laid the offense (Vernon’s Ann. Code Cr. Proc. 1916, arts. 248, 257).
    Under Vernon’s Ann. Code Cr. Proc. 1916, art. 248, as to venue of offense of receiving stolen property, in connection with article 257, as to proof of venue, defendant’s connection with the car need not be shown to have begun in the county where the indictment laid the offense.
    <©^For other cases see same topic and KEY-N (JMBER in all Key-Numbered Digests and Indexes
    Commissioners’ Decision.
    Appeal from District Court, Stephens County ; C. O. Hamlin, Judge.
    Oleve Barnes was convicted of receiving stolen property, and be appeals.
    Affirmed.
    V. L. Shurtleff, of Breckenridge, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt, M. Lyles, Asst. State’s Atty., of Groesbeck, for tbe State.
   BERRY, J.

Tbe offense is receiving and concealing stolen property, and tbe punishment is two years in tbe penitentiary.

There are contained in the record four special charges, each of which we have eon-eluded were properly refused by tbe court, Tbe first two of these were in effect peremptory instructions to acquit tbe defendant, and the third sought -to have tbe jury told that; as tbe indictment charged the receiving of tbe property in tbe fourth count from unknown persons, that tbe jury must therefore find that be received tbe stolen ear from more than one person before they could convict. This is not a correct statement of tbe law. On tbe contrary, we think tbe rule which makes tbe singular include the plural and tbe plural tbe singular applies in this case. Tbe other special charge found in tbe record is fully covered in the court’s main charge.

There is some complaint at tbe court’s action concerning a question which the jury sought to ask tbe court. Tbe court qualifies this bill by stafing that tbe answer given by tbe court' to said question was at the suggestion of counsel for the defendant, and that the special charge asked by appellant answering this question was offered after tbe question bad been so answered by tbe court. Under this condition of tbe record, we think no error is shown.

Tbe only matter .that has presented any difficulty in this case is as to tbe sufficiency of tbe evidence. We have studied tbe statement of facts very carefully, and, while tbe evidence is not as strong as it might be, yet we have reached the conclusion that it is sufficient to support the verdict.

Finding no error in tbe record, tbe judgment is in all things affirmed.

PER CURIAM.

Tbe foregoing opinion of tbe Commission of Appeals has been examined by tbe judges of tbe Court of Criminal Appeals and approved by tbe court

.MORROW, P. J,., absent.

Ón Motion for Rehearing.

MORROW, P. J.

Tbe Ford automobile of Chambers was stolen. It bad been parked near a church at night. Two men were seen moving it, and about tbe time or just before it was moved A. F. Barnes was seen near where tbe car was parked. It was taken from Stephens county, and later found in Palo Pinto county. When found it was in a remote place and. was without'gasoline. After discovering it, tbe officers watched it. After observing it for some time, two automobiles .came to tbe place where tbe car was found. Tbe two ears were occupied by A. F. Barnes, a man by tbe name of Wells, and tbe appellant. The ears were driven slowly to a point near tbe stolen ear, but were suddenly speeded up and ran over very rough roads. Tbe appellant bad obtained a can of gasoline at Strawn, in Palo Pinto county, and bad placed it in a Dodge car. When tbe appellant and iris companions in tlie two cars mentioned left tlie locality in which the stolen car was found, the officers pursued them. The appellant and his companions rode over some very rough country until one of the ears was wrecked. It was run into a ditch and abandoned. It was a Dodge ear, and in it or near it when found was a five-gallon can of gasoline. There were other circumstances tending to connect the appellant with the stolen property.

The sufficiency of the evidence is attacked, the contention being that there is no evidence that the appellant received the car from A. P. Barnes. It is true that the evidence is circumstantial, and that the court submitted it upon that theory. The evidence does ‘show that A. E. Barnes was seen at the place from which the car was taken. It affirmatively shows that the appellant was not seen there. It is the theory of the state that the appellant, A. P. Barnes, and Wells, arrived at the place where the stolen car had been left and brought with them a can of gasoline with which to replenish the car. Upon observing the presence of the officers or becoming aware of the fact that they had been there, they fled. There is evidence that two persons acted in taking the car and that the appellant was not present at the time.

The position is taken, however, that the proof is not adequate to show that the appellant’s connection with the ear began in Stephens county, and that for that reason the proof is insufficient. The case of Mooney v. State, 73 Tex. Cr. R. 121, 164 S. W. 828, in which it was held essential that the state prove the connection of the accused with the stolen car in the county named in the indictment was overruled in the companion case of A. F. Barnes v. State, No. 9893, 283 S. W. 506, citing Moseley v. State, 35 Tex. Cr. R. 210, 32 S. W. 1042, and other cases.

Article 248, Vernon’s Tex. Orim. Stat. 1916, vol. 2, confers jurisdiction of the offense here charged upon the county in which the theft took place or in any county where it may have been received, or through which it may have been carried. In article 257, referring to article 248, supra, and others, it is said:

“ * * * And, to sustain the allegation of venue, it shall only be necessary to prove that by reason of the facts existing in the case, the county where such prosecution is carried on has jurisdiction.”

The effect of the decision in the Barnes Case, supra, and in the cases therein cited, is to so interpret the provisions of the statute mentioned that if the property was stolen in Stephens county and afterwards the ap-jiellant, with knowledge of the theft, received it in either Stephens or Palo Pinto county, the facts proved on the trial would control the venue, and not the averment laying the offense in Stephens county.

The circumstances are not deemed insufficient to support the finding of the jury that the appellant received the car from A. P. Barnes. The appellant’s guilty connection, with the car was amply supported by testimony, and there were circumstances pointing to A. P. Barnes as one of the original takers.

There was no request that the jury be instructed to acquit the appellant of receiving the stolen property if he was one of the takers. Prom the presence of A. P. Barnes at the time of the taking, the connection of Wells with the transaction, and the appellant’s subsequent acts, we think the jury was warranted in drawing the inference upon which the verdict was based.

The motion for rehearing is overruled.  