
    BARKER v. STATE.
    (No. 11165.)
    Court of Criminal Appeals of Texas.
    Nov. 16, 1927.
    Rehearing Denied. Feb. 29, 1928.
    1. Criminal law &wkey;l086(l4), 1092(13) — Objections to charge in document, not verified by trial judge nor reciting presentation before reading main charge, cannot be considered (Code Cr. Proc. 1925, art. 658).
    Purported objections to court’s charge in document, not verified by trial judge nor reciting that it was presented before main charge was read to jury as required by Code Cr. Proa 1925, aft. 658, cannot be considered on appeal.
    2. Criminal law &wkey;>l09l (10)— Bills of exception, not showing presentation of written objections to charge before reading main charge, cannot be considered (Code Cr. Proc. 1925, art. 658).
    Bills of exception, not showing that objections therein to court’s charge were presented in writing before reading of main charge, as required by Code Cr. Proc. 1925, art. 658, cannot be considered.
    
      3. Criminal law <&wkey;1086(14) — Refusal of special charges, not showing request therefor before reading main charge nor exception to refusal, not complained of by separate bills of exception, cannot be considered.
    Refusal of special charges not showing whether they were requested before main charge was read or exception reserved to their refusal, which was not complained of in separate bills of exception, cannot be considered.
    4. Criminal law <&wkey;4 120(3) — Bills of exception, nut stating answers given or expected to
    . questions complained of, show no error.
    Bills of exception, complaining of questions asked witnesses without setting out answers given or expected, show no error.
    5. Receiving stolen goods <&wkey;9(l) — Jury could find that one leaving county In stolen automobile with one he knew was to steal it concealed it.
    Jury was justified in finding that one getting in stolen automobile and leaving county in which it was stolen with thief, by whom he knew it was to be stolen, was party to removal thereof, and hence guilty of concealing it.
    6. Receiving stolen goods &wkey;>! — One may “conceal” stolen property by handling It so as to throw owner off guard in searching for it, as by removing it.
    Word “conceal,” in statute as to receiving and concealing stolen property, is not to be given literal construction of “hiding,” but may be by handling property in manner that would throw owner off his guard in searching therefor, as by carrying it off.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Conceal —Concealment.]
    On Motion for Rehearing.
    7. Courts <&wkey;87 — Court cannot depart from correct rules and sound precedents because of sympathy for defendant.
    Court cannot depart from correct rules and sound precedents in particular case, even if defendant were a youth of such innocence and lack of guile as to appeal to court.
    8. Receiving stolen goods <&wkey;=>7(3) — That grand jury, with more diligence, could have ascertained name of “unknown” person, from whom property was stolen, held not to be apparent.
    Evidence held, not to show that grand jury returning indictment for receiving stolen property from some person to them unknown could have ascertained name of .such, person by use of more diligence, in absence of testimony by any witness that he knew name of such person when before grand jury or at time of trial.
    9. Receiving stolen goods <&wkey;7(3) — Indictment for receiving stolen property from unknown person held not error, in absence of showing that witnesses or that grand jury, with more diligence, could have ascertained his name,
    Unless record discloses that witnesses before grand jury or on trial knew name of person from whom accused received stolen property, or it is affirmatively shown that grand jury could have ascertained his name by using more diligence, no error appears in returning indictment alleging that such person was unknown to grand jurors.
    Appeal from District Court, Martin County; Chas. D. Klapproth, Judge.
    Tommie Barker was convicted of receiving and concealing stolen property, and he appeals. Affirmed.
    Cunningham & Cunningham, of Big Spring, for appellant.
    A. A. Dawson, State’s Atty, of Austin, for the State.
   HAWKINS, J.

Conviction is for receiving and concealing stolen property, punishment being two years in the penitentiary.

Appellant undertakes to raise a number of questions which appear in the record in such condition that we cannot take cognizance of them. There is found in the transcript a document which purports to be objections to the court’s charge. It is not verified by the trial judge and' does not recite that it was presented, before the main charge was read to the jury. Salter v. State, 78 Tex. Cr. R. 326, 180 S. W. 691; Castelberry v. State, 88 Tex. Cr. R. 502, 228 S. W. 216; Rhodes v. State, 93 Tex. Cr. R. 574, 248 S. W. 679. By bills of exception Nos. 1 and 3 appellant undertakes to bring forward objections to the charge, but by neither of said bills is it shown that the objections were presented in writing before the reading of the main charge. Article 658, C. C. P. (1925); Roberts v. State, 99 Tex. Cr. R. 492, 269 S. W. 103; Wright v. State, 100 Tex. Cr. R. 291, 272 S. W. 787; Butler v. State, 105 Tex. Cr. .R. 228, 288 S. W. 218; Scott v. State, 106 Tex. Cr. R. 376, 292 S. W. 891. Two special requested charges appear in the transcript. Neither of them show whether they were requested before the main charge was read, both are simply marked “refused” over the trial judge’s signature without verification that exception was reserved to such refusal, and no separate bills of exception are found complaining of the court’s action in declining to give them. Bland v. State, 92 Tex. Cr. R. 636, 244 S. W. 1023; Linder v. State, 94 Tex. Cr. R. 316, 250 S. W. 703; Cunningham State, 97 Tex. Cr. R. 624, 262 S. W. 491; Benson v. State, 105 Tex. Cr. R. 268, 287 S. W. 1097. Bills of exception 2 and 4 show no error. They each complain of certain questions asked of witnesses, but in neither bill is the answer given by or expected from the witness set out.

The subject of the theft was an automobile. It was stolen in Stanton, Martin county, and abandoned by appellant and two others in Reeves county when about to be •overtaken by officers. It was appellant’s contention that he was not a party to stealing the car, but knew one of tbe other boys was going to steal it, and that after be bad done so appellant and bis companion got in tbe car with tbe tbief and left tbe county where it had been stolen. Tbe jury was justified in finding that appellant was a party to tbe removal of tbe ear and therefore in contemplation of tbe law “concealing” it. Tbe word “conceal” is not to be given tbe literal construction of hiding, but may be by handling tbe property in a manner that would throw tbe owner off bis guard in his search for it. Property may be concealed by carrying it off. Polk v. State, 60 Tex. Cr. R. 150, 131 S. W. 580; Davis v. State, 61 Tex. Cr. R. 611, 136 S. W. 45; Moseley v. State, 36 Tex. Cr. R. 578, 37 S. W. 736, 38 S. W. 197.

Tbe judgment is affirmed.

Oi) Motion for Rehearing.

LATTIMORE, J.

A strong appeal is made to us to vary the established rules of this court, and to depart from all tbe precedents in view of what is set up as tbe merits of this defense. If tbe rules be right and tbe precedents .be sound, tbe unwisdom and injustice of. a departure in a particular case would be apparent. This court cannot make fish of one and flesh of another. If we were willing to set tbe law aside in one case, manifestly we could not justify our failure to set it aside in all cases. However, tbe facts in this case are not such as to lead us to conclude that we have here a youth of such innocence and lack of guile, as to greatly appeal to this court. We observe that tbe facts show practically without dispute that appellant and two other boys discussed tbe theft of a particular car, and that appellant and one of the .boys were afraid to take the car, but when it was taken by tbe third boy, these two willingly got into tbe car and rode from Martin county to Pecos in said stolen property. We perceive little, if any, difference in tbe turpitude of one who is not willing to first lay bold upon tbe property of bis neighbor, but at a distance watches another actually take same into bis possession and then in a few yards or blocks unites with tbe actual taker in tbe further removal of tbe property.

Appellant makes tbe point in his motion that tbe indictment charging tbe receiving and concealing of stolen property alleged that same was received from some person to tbe grand jurors unknown, and it is claimed there is no testimony in tbe record supporting tbe proposition that the grand jury made any effort to ascertain tbe name of tbe party from whom appellant so received said property. We have carefully examined tbe record, and find that no witness testified that be knew the name of tbe party from whom appellant received tbe stolen car. Appellant’s confession does not name such party. Tbe sheriff and night watchman at Pecos who recovered tbe car and saw three parties in it, and one of whom arrested appellant and a companion— neither testified to knowing tbe name of tbe party from whom appellant received said car. In fact, they denied knowing it either at tbe time of tbe trial or when they were before the grand jury. Mr. Zimmerman, sheriff of Martin county, said that about ten days after this theft a boy was brought from Pecos supposed to be tbe third party engaged in this theft, but that appellant and bis companion both denied positively that this boy was implicated, and that be released said boy. He said be did not know tbe name of the party from whom appellant got tbe car, either at tbe time of tbe trial or when before tbe grand jury.

Appellant insists that Williams v. State 69 Tex. Cr. R. 163, 153 S. W. 1136, should be held authority for reversing this case. We do not so understand that case. It was -laid down by this court in Yantis v. State, 65 Tex. Cr. R. 564, 144 S. W. 947, that unless tbe record in some way discloses that witnesses who were before tbe grand jury, or who gave testimony on tbe trial, knew the name of tbe alleged unknown person from whom the accused received the stolen property, or unless it is shown affirmatively that the grand jury, by tbe use of more diligence than they exercised, could have ascertained tbe name of such person, no error would appear. This case is followed by Shipp v. State, 84 Tex. Cr. R. 623, 209 S. W. 657, and in our opinion announces a correct proposition of law.

The other contentions made by appellant were discussed, and we think correctly decided, in tbe original opinion.

The motion for rehearing will be overruled. 
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