Marteriano Arcia v. The State, 26 Tex. Ct. App. 193

Willson, Judge. When the witness Eenteria was placed upon the stand by the State, the defendant objected to his testifying, upon the ground that he was a convicted felon, and was therefore an incompetent witness. In support of the objection defendants proved that said witness had been tried for, and found guilty of, felonious theft, and also of burglary, and •by proper judgments of the court, had been adjudged guilty of said felonies.

It further appeared, however, that sentence had not been pronounced against the witness upon either judgment, at the time he was offered as a witness, and the trial court therefore overruled defendant’s objection .to the competency of said witness, and permitted him to testify. This ruling of the ■court was excepted to, and is insisted upon as error by defendant’s counsel. A conviction of a felony, unless such conviction has been legally set aside, or unless the convict has been legally pardoned, renders such convict incompetent to testify as a witness. (Code Crim.

Proc., art. 730.) But the question here presented is, had the witness, at the .time he was offered as such, been convicted of felony, within the meaning of our code, sentence not then having been pronounced against him. In the absence of any statutory provisions affecting this question, we would hold, in accordance with what seems to be the well settled rule, that a verdict followed by a judgment, renders the conviction complete, and the -disqualification at once attaches, but in no case attaches until judgment has been rendered upon the verdict. (Desty’s Am. Cr. Law, 49 b, note 11; 1 Whart.

Ev., sec. 398, note 6.) There are. however, some peculiar provisions in our code, which, we think, require more than a verdict and judgment to be shown, in order to establish a forfeiture of civil rights. Under our code, in all felony eases, a sentence must follow the judgment. This sentence is distinct from, and independent of, the judgment, and is, in fact, the final judgment in’the cause. It must be pronounced and entered in all felony cases, except in a capital case, when the death penalty is assessed, before an. appeal can be prosecuted. (Code Crim.

Proc., arts 791, 792, 793.) It is the sentence, therefore, and not the judgment, which, under our code, concludes the prosecution in the trial court, and until it has been pronounced it can not be said that thé conviction in the trial court is complete, so as to work a forfeiture of civil rights. If, after sentence has been pronounced, no appeal is taken, the conviction is complete, and its consequences attach and operate at once.

But if an appeal be prosecuted, the effect of the appeal is to suspend and hold in abeyance the enforcement and legal consequences of the conviction until the judgment of the court of last resort has affirmed the conviction had in the trial court. (Code Crim. Proc., art. 849.) This view is confirmed by

article 27 of the Penal Code, which reads: “An accused person is termed a. ‘convict’ after final condemnation by the highest court of resort whieh, by law, has jurisdiction of his case, and to which he may have thought proper to appeal.” Looking, therefore, to the provisions of the code which we have cited, and considering and construing them together, we-are of the opinion that the trial court did not err in holding the witness Renteria to be competent to testify.

To constitute the offense of receiving stolen property, knowing the same to have been stolen, the act of receiving or concealing must be accompanied by a criminal intent, an intent to aid the thief or to obtain a reward for restoring the property to the owner, or an intent to in some way derive profit from the act. There must be a guilty knowledge, a fraudulent intent concurrent with the act. (Nourse v. The State, 2 Texas Ct.

App., 304.) If the property was received or concealed with the-purpose and intent of restoring it to the owner without reward, or with any other innocent intent, the mere knowledge that it was stolen property would not make the act criminal. (Desty’s. Am. Crim. Law, 147e.) In his charge to the jury the learned judge overlooked this-essential element of the offense, omitting entirely to instruct the jury that such intent was necessary to constitute the offense.

Under the charge as given the jury was authorized to convict upon proof that the property was stolen and that the defendant received or concealed it, knowing that it was stolen., although they might not have believed from, the evidence that he received or concealed it with criminal intent. This defect in the charge was specifically pointed out and excepted to, and was also sought to be corrected by,a requested instruction, which was refused. We can not, therefore, inquire as to the «effect which may have been wrought by the error.

It may have been harmless to the defendant, and, had it not been excepted. to, might not be error for which the conviction would be disturbed. But, presented as it is, by proper bill of exception, we must, because of this error, reverse the judgment. Opinion delivered October 24, 1888. Other exceptions were reserved to the charge, all of which we have carefully considered, but in our judgment they are not maintainable. With the exception of the single error above specified we think the charge of the court is correct and unobjectionable; but for that error the judgment is reversed and the «cause is remanded.

Reversed and remanded.