Thе conviction is for the substantive crime of conspiracy to commit felony theft; the punishment, two years in the penitentiary.
The count in the indictment upon which the conviction was predicated charged, in effect, that appellant, Dean Hambrick, and Felix Haler entered into a conspiracy, in Gaines County, to steal, from W. H. Castleberry, corn of the value of $854.50.
The State dismissed as to Haler and usеd him as a witness. The case was submitted to the jury upon the theory — and the jury was so instructеd — that appellant’s guilt depended upon facts showing a conspiracy bеtween Hambrick and himself to commit the crime of theft as alleged.
The sufficienсy of the evidence to support the conviction is challenged.
Appellant was in the business of buying and-selling grain, including corn. Trucks were used in the operation оf the business. Haler was employed as a truck driver. Hambrick was an employeе and was the overseer of the trucks.
According to Haler’s testimony, he was instructеd, by both appellant and Hambrick, to go to Seagraves, in Gaines County, and buy a load of corn. No specific instructions were given from whom the corn was to be purchased. He was given some blank checks, signed by appellant, with which to purchase the corn. Both Hambrick and appellant told Haler the checks were “good.” Haler went to Seagraves and contacted Castleberry, from whom he purchased a truckload of corn, at an agreed price оf something over $460.00. It appears that another employee of apрellant had, the day before, bought a load of corn from Castleberry, and Castlеberry suggested that the price of the load, as well as the one Haler was purchasing, be included in one check. Haler agreed, and gave Castleberry оne of the checks funished him by appellant, and which Castleberry filled out for $854.50— the рurcháse price of the two truckloads of corn. Haler made no reprеsentations to Castleberry regarding the check. Before the transaction was closed, Haler told Castleberry “that I would have to give him a check for this cоm which was given to me to buy it with, and he said that was all right, he says, ‘that is all right, we will take a chаnce on that’.” The check so *629 given was, in due course of time, presented tо the bank and was not paid; for what reason, the record does not disclose.
In addition to the foregoing, there was testimony showing other transactions, in other localities, similar to that detailed, in which the checks given for the purchase of grain by appellant or his employees were not paid.
The appеllant did not testify as a witness in his own behalf nor did Castleberry, from whom, it was alleged, apрellant and Hambrick conspired to steal the corn.
The substantive crime of сonspiracy consists in the positive agreement entered into between twо or more persons to commit a felony. Art. 1622, P. C. The offense is complete when the agreement is entered into, and it is not necessary that the object of the conspiracy be consummated. Art. 1625, P. C.
In so far as the crime of conspiraсy is concerned, the most that the facts here presented show is that appellant and Ham-brick, acting together, placed, in Haler’s hands, blank checks, signеd by appellant, which were represented as being “good,” and with which Haler was to buy, and did buy, corn. The check he gave in payment therefor was not good, thаt is, it was not paid.
Such facts do not show the substantive crime of conspiracy аs charged. Whatever agreement there was between appellant аnd Hambrick, there is an entire absence of any proof that would authorize thе conclusion that same was to steal the property of Castleberry as сharged. King v. State,
The judgment of the trial court is reversed and the cause remandеd.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.