Johnson v. State

• Decision Date: 27 June 1913
• Citation: 159 S.W. 849
• Parties: JOHNSON v. STATE.
• Court: Texas Court of Criminal Appeals

159 S.W. 849

JOHNSON v. STATE.

Court of Criminal Appeals of Texas.

June 27, 1913.

Rehearing Denied October 15, 1913.

Appeal from District Court, Orange County; W. B. Powell, Judge.

Shelby Johnson was convicted of embezzlement, and he appeals. Affirmed.

Bisland & Adams, of Orange, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was prosecuted and convicted of embezzlement, and his punishment assessed at two years' confinement in the penitentiary.

The indictment in this case is in strict conformity with the forms prescribed in White's Annotated Penal Code, § 1629, and approved by this court in Golden v. State, 22 Tex. App. 1, 2 S. W. 531, and Brown v. State, 23 Tex. App. 214, 4 S. W. 588.

It is insisted that the offense in this case, if any committed, constitutes theft by bailee and not embezzlement. The facts would show that R. L. Norman came from Louisiana to Texas in search of work, and in Orange met appellant's daughter, whom he had known, and stated to her he was in search of work; that he asked about her father, and was informed by the daughter that her father, appellant, was running a boarding house at Lemonville; that Norman went with the daughter and stopped at appellant's boarding house, and inquired of him about work, and appellant assisted Norman in getting work. Further, it is shown by the evidence that appellant and Norman were acquaintances of long standing, and after getting work he went to boarding with appellant at his boarding house, and deposited with him for safe-keeping $70 in money. We do not think these facts bring the case within the definition of theft by bailee, but it is clearly embraced within the embezzlement statute. In the case of Reed v. State, 16 Tex. App. 586, what constitutes embezzlement by bailee was thoroughly discussed by this court, and the authorities fully reviewed, and it is there held: "The connection in which the term `bailee' is found in the statute under consideration indicates very clearly that it is not used in its largest sense— that it was not intended to comprehend every species of bailment, and all who might stand to the owner of money, property or effects in the relation of a bailee. It is limited and confined to bailees of a particular class, those having possession wholly and exclusively for the benefit of the bailor—bailments where the owner parts with the actual possession, not with the right of property, general or special, and is not without right to resume possession. The hirer of chattels for a term is a bailee, doubtless, but of a particular class or kind. The trust created is not exclusively for the benefit of the bailor, but rather for his own benefit. * * * It is not a bailment of this character the statute refers to, but to bailments in which the bailor and bailee stand in a fiduciary relation, in which the bailee acts for and on account of the...