Duncan v. State

• Decision Date: 19 November 1902
• Citation: 70 S.W. 543
• Parties: DUNCAN v. STATE.
• Court: Texas Court of Criminal Appeals

70 S.W. 543

DUNCAN v. STATE.

Court of Criminal Appeals of Texas.

November 19, 1902.

Appeal from district court, Harrison county; Richard B. Levy, Judge.

Richard Duncan was convicted of conversion, and appeals. Reversed.

Robt. A. John, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The charging part of this indictment is that appellant "did then and there have possession of a mule then and there the property of Joe Taylor, by virtue of his contract of hiring with said Joe Taylor, and did then and there unlawfully, and without the consent of the said Joe Taylor, the owner thereof, fraudulently convert said horse to his, the said Richard Duncan's, own use." This indictment was framed under the article of the Penal Code which denounces a punishment for the conversion of property held under a contract of borrowing or hiring, and is attacked because appellant is charged with having hired a mule and converted a horse; in other words, that appellant is charged with the conversion of an animal the possession of which is not alleged, and the hiring of which is not averred. This mistake may have been an oversight in the pleader. But, in order to constitute the offense sought to be charged, the party must convert the animal in his possession by virtue of his contract of hiring, and this must be properly alleged in the indictment. A party could not have possession of a mule by virtue of a contract of hiring, and be convicted for converting a horse. The motion in arrest of judgment should have been sustained. Because of this defect in the indictment, the judgment is reversed, and the prosecution ordered dismissed.