# Nichols v. State

> Court of Criminal Appeals of Texas · March 23, 1938 · 135 Tex. Crim. 184

URL: https://www.frixlaw.com/law-library/cases/3948277

## Case

- **Full name:** Albert Nichols v. the State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** March 23, 1938
- **Citations:** 135 Tex. Crim. 184; 117 S.W.2d 433; 1938 Tex. Crim. App. LEXIS 627
- **Precedential status:** Published
- **Opinion:** Addendum by Graves
- **Judges:** Graves, Krueger
- **Cited by:** 1 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/3948277

## Opinion text

ON MOTION FOR REHEARING.
Graves, Judge.
The State has filed a vigorous motion for a rehearing herein, and insists that we were in error in our original opinion in holding that the trial court erred in refusing to charge the jury relative to appellant’s wife’s testimony wherein she testified that the body of the automobile found in Monaghan’s possession and positively identified by Davis as the body of his stolen car, was purchased from a parts dealer in Dallas, — the argument used being that if such body was not that of the stolen automobile, nevertheless the identification thereof was merely an evidentiary fact upon which the State’s proof thereon might fail, and yet such failure to identify this body as that of the stolen automobile would not rise to the dignity of a defense to the instant charge because of the further fact that the engine out of the stolen car was found in appellant’s possession, and no explanation of its presence made save that of appellant’s confession to the effect that such engine was taken by him out of the stolen automobile and hidden under some hay.
This theory would possibly be tenable except for the peculiar condition in which we find this case. The party who lost the stolen car positively and convincingly identified the body of the car sold to and found in Mr. Monaghan’s possession as the body of his stolen car. Now if appellant’s wife had challenged such identification and denied that such was the injured person’s car, we might take our position along with the State’s reasoning and say this was merely a failure of the State to identify all
*187
the portions of the stolen automobile, but on the contrary we find ourselves with a practical admission on the appellant’s part that such was the body of the stolen automobile, and the wife’s testimony to the effect that appellant did not receive this body from the confessed thief, but instead he purchased this body from a parts company in Dallas. It would therefore follow that, if the jury believed such testimony, appellant did not receive this body from the thief, as was charged in the indictment, and such a state of fact, if believed, would be a complete defense to the charge set forth in the indictment. We still think the requested charge should have been given, and the motion will, therefore, be overruled.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/3948277. Public record. Not legal advice.