34 S.W. 930 | Tex. Crim. App. | 1896
Appellant in this case was convicted of fraudulenly converting a horse, after obtaining possession of the same by virtue of a contract of borrowing, in violation of Article 877 of the Revised Penal Code. From such conviction he prosecutes this appeal. *591 Said Article 877 reads: "Any person having possession of personal property of another by contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use, with the intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as prescribed in the Penal Code for theft of like property." Art. 861, Rev. Penal Code, provides, in regard to theft generally, "that the taking must be wrongful;" so that, if the property came in possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawfull, was obtained by any false petext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the theft is complete. A conviction under this article could not be sustained unless it be shown that the accused acquired the property by some false pretext, or with the intent, at the very time of obtaining the property, of depriving the owner of the value thereof, and of appropriating the property to the use and benefit of the person taking same; and it must also be shown that the property was so appropriated. See, Porter v. State, 23 Tex.Crim. App., 295; Hornbeck v. State, 10 Tex.Crim. App., 408; Dow v. State, 12 Tex.Crim. App., 343; Morrison v. State, 17 Tex.Crim. App., 34; Atterberry v. State, 19 Tex.Crim. App., 401. The fraudulent intent must exist at the very time of acquiring the possession of the property, and no subsequent fraudulent intention of appropriating the property will suffice to constitute the original lawful taking theft. This was the rule at common law. The appellant was not indicted under Article 861, but, as before stated, under Article 877. The very facts upon which the conviction was sought are stated in the indictment. It is alleged that he was in possession of the property by virtue of a contract of borrowing, and that he appropriated the property, to-wit: a horse, to his own use, without the consent of the owner, etc. Under Article 861, it was almost impossible, especially in the absence of proof that the accused resorted to false pretenses, to prove that the accused had the fraudulent intent at the very time he acquired possession of the property. There has been a great deal written upon this subject. Our legislature, however (comprehending the difficulty of making such proof, and believing that the man who would borrow or hire a horse, and then appropriate it to his own use fraudulently, without the consent of the owner, was as bad a citizen as the man who took it without consent fraudulently), passed Article 877, under which appellant was prosecuted and convicted. Under this article, the State is not bound to prove that the accused resorted to false pretenses, or entertained, at the time he acquired possession of the horse, the intention to deprive the owner of its use, etc. He may have obtained it in good faith, without ever intending to appropriate it, or to deprive the owner of its value; but, having acquired possession by borrowing, a subsequent appropriation, such as described in Article 877, makes him guilty of theft. *592
Under this indictment, the following facts must be proven: That the appellant had possession of the horse by virtue of a contract of borrowing, and that he did, without the consent of the owner, fraudulently convert such property to his own use, with intent to deprive the owner of the value of the same. These things being proved, the offense is established. Under Article 861, proof that the appellant converted the property to his own use, without the consent of the owner, did not establish the fact that he intended the fraud when he obtained possession of the property. While the conversion was a necessary element of the offense, yet it alone was not sufficient to show the fraudulent intent at the time the property was acquired. Under the last act, it is necessary to show that the accused had possession of the property by virtue of the contract, and that he appropriated it, as stated in said article. It is no offense to borrow a horse; the offense consists in borrowing and converting same to his use and benefit. There is no crime of any sort until the conversion takes place. The question, therefore, is: Where a party obtains possession of a horse by borrowing or hiring, etc., in one county, and converts the same to his own use and benefit, fraudulently, in another county, in which county should he be tried? Evidently in the county in which the offense was committed. We have found that in this case there was no conversion in Hood County, but that it was in Parker County. Parker County, therefore, is the county in which the offense was committed. But the learned judge who tried this case below instructed the jury that, if the intention to convert was conceived in Hood County, that gave Hood County jurisdiction. This intention is not a crime. It is the conversion that makes the crime. The accused may have entertained the intent to convert the property in Hood County, but as he obtained possession lawfully, without intending a conversion, he committed no crime until an actual conversion had been effected. Not so under Article 861. Under that article, having obtained possession of the property by a false pretext, or having obtained it with the then present fraudulent intent, and afterwards converted it, the taking, under all of the authorities, was fraudulent; but the offense was not complete until the conversion took place. This, however, was for the purpose of establishing the intent, for the law would not, without the conversion, permit a conviction, or permit proof of the intent in the absence of the conversion. To be more explicit, it requires proof of conversion, proof of false pretenses, proof of the present fraudulent intent, all these, to make out a fraudulent taking. And no mere proof of false pretenses and proof of circumstances showing the intent to appropriate the property at the time of its acquisition would be permitted to establish the theft, without proof of the conversion. When these are all made, the county in which the property was acquired has jurisdiction. We are not discussing the character of proof necessary to constitute a conversion of the property. We are of the opinion that the District Court of Hood County had no authority to try this case. The motion for a new trial will not be considered, nor the affidavits setting *593 forth newly-discovered testimony. These matters are not likely to arise on another trial. The judgment is reversed, and the cause remanded.
Reversed and Remanded.