Wilson v. State

82 S.W. 651 | Tex. Crim. App. | 1904

Appellant was convicted of embezzlement, and his punishment assessed at two years confinement in the penitentiary. The indictment is in two counts, charging appellant with embezzlement of a horse, alleged to have come into his possession as bailee of one B.F. Carter. The indictment appears to have been drawn under article 938 Penal Code. Under the facts of this case the indictment properly charged embezzlement instead of theft. The facts briefly stated show that appellant was the servant and employee of Carter, and as such was sent by him to the village of Battle, McLennan County, to buy and bring home some medicine for prosecutor; and was entrusted by prosecutor with the mare to ride for said purpose. The appropriation of the animal under such circumstances would not have constituted theft under the general statute, appellant being the mere servant of James. Bailey v. State, 18 Texas Crim. App., 425; Graves v. State, 42 S.W. Rep., 300. Although the act may have constituted theft of property acquired by bailment under article 877 Penal Code, that affords no reason why it would not also constitute embezzlement under the general statute. In Livingston v. State, 38 Tex. Crim. 535, the facts were somewhat different from those here, showing only a bare custody of the barber shop in the absence of the employer; and it was there held that they did not constitute appellant the possessor of the goods in such manner, as that he could not be guilty of committing a theft thereof. In the case at bar, there is no question as to the possession of the mare by appellant. While this was a mere gratuity, the mare being furnished by the master to the servant in his employment as such it was none the less a bailment. Malz v. State, 36 Tex. Crim. 447. Did appellant embezzle said mare? It is contended that his acts do not evidence an actual appropriation or conversion inasmuch as there was no consummated sale of the mare by appellant. It may be conceded that the sale of the mare was not perfected, yet the circumstances show a sufficient appropriation to constitute a conversion. Steadham v. State, 40 Tex. Crim. 43. It is shown that appellant did not go to Battle, where prosecutor sent him to get the medicine, but instead proceeded to Waco, and there we find him endeavoring to sell the mare. This was sufficient to show a conversion. The charge of the court sufficiently covered the case, and it was not necessary to give the special instructions requested by appellant. There being no error in the record, the judgment is affirmed.

Affirmed.

Davidson, Presiding Judge, absent.