Fulcher v. State

Citation25 S.W. 625
Decision Date10 March 1894
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from district court, Midland county; William Kennedy, Judge.

W. F. Fulcher was convicted of fraudulent conversion of money, and appeals. Reversed.

F. G. Thurmond, for appellant. R. L. Henry, Asst. Atty. Gen., for the State.


Appellant was convicted of a fraudulent conversion of money paid to him by mistake, and his punishment assessed at two years in the penitentiary. The only question in the case is whether the offense charged against appellant is within the purview of article 742a of the Penal Code. In this case the cashier of the First National Bank of Midland County, by mistake, paid to appellant $500 more than his check on that bank called for, which was converted by appellant to his own use. Article 742a declares that any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft. The indictment contained two counts, — one for the theft of the money, which was dismissed. The other count alleges that appellant "did then and there obtain and acquire from W. E. Connell the possession and custody of five hundred dollars, current money of the United States, the property of said Connell, by virtue of a contract of bailment, in this: that the said W. E. Connell did then and there pay said money aforesaid to the said W. F. Fulcher by mistake, who, while in possession of said money by virtue of said bailment, did then and there fraudulently convert and appropriate said money to his own use, with intent," etc. Did the payment of this money, by mistake, to appellant, make him a bailee? A "bailment" may be defined as a delivery of personal property to another for some purpose, upon a contract, expressed or implied, that such purpose shall be carried out. 2 Bl. Comm. 451; Jones, Bailm. 117; Story, Bailm. § 2. Money paid by mistake, as in the case at bar, cannot be held, under the above definition, to be a bailment. There was no intent on the part of the cashier, Connell, to deliver the money, to wit, the said $500, to appellant for any purpose. If, however, at the time the appellant received the property, he formed the criminal design to appropriate it to his own use, and did so appropriate it, it would be theft....

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20 cases
  • United States v. Rogers, 8214.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (4th Circuit)
    • 4 Abril 1961
    ...1946, 157 Fla. 605, 26 So.2d 646; Territory v. Lee, 1926, 29 Hawaii 30. See, also, Bailey v. State, 58 Ala. 414; Fulcher v. State, 1894, 32 Tex.Cr.R. 621, 25 S.W. 625; Cooper v. Commonwealth, 1901, 110 Ky. 123, 60 S.W. 938, 52 L.R.A. 136; Commonwealth v. Hays, 1859, 14 Gray, Mass., 62. The ......
  • Lee v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • 27 Diciembre 1916
    ...that this statute covered every character of bailment, except one for the exclusive use and benefit of the bailor. Fulcher v. State, 32 Tex. Cr. R. 624, 25 S. W. 625; Malz v. State, 36 Tex. Cr. R. 451, 34 S. W. 267, 37 S. W. 748; Harding v. State, 49 Tex. Cr. R. 601, 95 S. W. 528; Northcutt......
  • Packer v. People
    • United States
    • Supreme Court of Colorado
    • 19 Junio 1899
    ...... manslaughter was returned under each indictment. On August. 5th the court sentenced the defendant to confinement in the. state penitentiary for a continuous term of 40 years, divided. into five terms of 8 years each. In addition to the. foregoing, the record shows that on ...Ann. 978, and cases cited; Lamkin v. People, 94 Ill. 501; Garrison v. People, 87 Ill. 96; Church. v. People, 10 Ill.App. 222; Fulcher v. State, 32 Tex. Cr. R. 621, 25 S.W. 625; Hatwood v. State, 18 Ind. 492; U.S. v. Watkins, 3 Cranch, C. C. 441; Fed. Cas. No. 16,649; McLane v. ......
  • Loomis v. Imperial Motors, Inc.
    • United States
    • United States State Supreme Court of Idaho
    • 2 Noviembre 1964
    ...to redeliver the goods to the bailor or otherwise dispose of the same in conformity with the purpose of the trust. Fulcher v. State, 32 Tex.Cr.R. 621, 25 S.W. 625.' Applied to the facts of the case at hand, delivery was implied, in that possession was in the hands of Loomis, the 'When posse......
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