Lee v. State

• Citation: 193 S.W. 313
• Decision Date: 27 December 1916
• Docket Number: (No. 4254.)
• Parties: LEE v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

193 S.W. 313

LEE v. STATE.

(No. 4254.)

Court of Criminal Appeals of Texas.

December 27, 1916.

Dissenting Opinion December 29, 1916.

On Motion for Rehearing, March 28, 1917.

Appeal from District Court, Tarrant County; Jas. W. Swayne, Judge.

M. Lee was convicted of theft by a bailee, and appeals. Affirmed, and motion for rehearing overruled.

Graves & Houtchens, of Ft. Worth, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was tried under an indictment containing two counts, one charging embezzlement, and the other theft by bailee. The court submitted only the count charging theft by bailee, and appellant was convicted under this count, and his punishment assessed at four years' confinement in the state penitentiary.

One of the contentions made is that the evidence offered in behalf of the state will not support a verdict of guilty of theft by bailee. The evidence of the man from whom appellant obtained the goods, Mr. G. C. Gauntt, is as follows:

"I know M. Lee and had a transaction with him on the 16th of October, last year. At that time he came in my store early in the morning and took some merchandise out of the store and said he would return it or return the money on that very morning. I remember him taking out five suits, three dresses, two coats and possibly more. These goods were valued at $103.90 or more. I did not sell him the stuff, but let him have it to sell or bring back, and I was to pay him a commission for selling, as I had done on previous transactions, of 15 per cent. He was to keep 15 per cent. of the value of the goods and pay me the balance. He did not bring either the goods or the money back on this occasion, and I don't know what he did with that merchandise that morning. E. A. Corbett & Co. is an incorporated company, and E. A. Corbett is one of the interested parties. I did not give this defendant my consent to sell or appropriate this property for his own use. I let him have this property in Ft. Worth, Tarrant county, Tex., on the 16th day of October, 1915."

Appellant testified in his own behalf, and he admits getting the goods in question, and testifies they were sold to him on a credit. Of course, if the goods were sold to appellant, and the title to them passed to him, he could not be guilty of theft as bailee, for bailment necessarily implies that one has in his possession the goods of another. After appellant had testified and introduced his evidence tending to show a sale to him on a credit, the court in his charge instructed the jury:

"You are further instructed that if you find and believe from the evidence in this case that, on or about the date alleged in the indictment and at the same time of the transaction between the defendant and the witness Gauntt, the same being the transaction alleged in the indictment, the defendant had a conversation with E. A. Corbett, in which conversation and at which time the said E. A. Corbett agreed to extend, and did extend, to the defendant credit to the amount of $150, and that as a result of said conversation and in pursuance of said agreement, if any, A. A. Corbett & Co., acting through its agent, the witness Gauntt, sold to the defendant the goods described in the indictment on credit, and if you believe that the disposition of said goods to the defendant at said time and place was a `sale,' as that term is hereinafter defined, and was not a `bailment,' as that term has been hereinbefore defined, or if you have a reasonable doubt thereof, you will acquit the defendant. By the term `sale' is meant the agreed transfer of the title to property from one person to another at an agreed price for a valuable consideration either paid at the time or agreed to be paid in the future."

Having thus instructed the jury, it was not necessary for the court to give any of the special charges requested by appellant on the issue of a sale of the goods to him by the owner; this charge fully covered that issue.

If the court's charge was ever subject to the criticism that "it authorized the conviction of appellant without regard to the value of the property," it was corrected before it was presented to the jury, for the charge as given specifically required that the jury find the property was of the value of $50, or over that amount, before they would be authorized to convict.

The court's charge as given is not "vague, indefinite, and erroneous," and is not upon the weight to be given the testimony. The criticism that it was "vague, indefinite, and erroneous" would be too general to call for a review of the charge, unless it was in some way attempted to be pointed out wherein it was vague, indefinite, and erroneous.

There was no error in overruling that ground of the motion for new trial alleging the incompetency of the jurer G. S. Miller. It appears that appellant had a case in the county court, and Mr. Miller was impaneled on that jury. After one witness had been introduced the court instructed a verdict of not guilty in the county court case. When examined on his voir dire, when the jury was being impaneled in this case, Mr. Miller stated, in answer to questions, that he was on that jury in the county court, and yet was accepted after so informing counsel. We will state, however, that counsel for appellant say they did not hear that answer of the juror. However, the court heard evidence, and Mr. Miller testifies, "At the time I was taken as a juror in this case, I did not have any opinion as to the guilt or innocence of the defendant," and no testimony was offered that he did have an opinion, or that he was biased or prejudiced in any respect.

There was no error in excluding the evidence of the witnesses Mable Thompson, Louise Bell, and Blanch Lamont. Their testimony would relate solely to a transaction or transactions between appellant and A. Ballas, and would have no connection with or shed any light on the transaction charged in this indictment, wherein appellant is alleged to have the goods of E. A. Corbett & Co. as bailee in his possession, and fraudulently converted same to his own use.

The only other question presented is whether or not the facts will support a conviction of theft by bailee. The evidence offered in behalf of the state would authorize a jury to find that appellant went to one or two merchants in Ft. Worth and made arrangements with them to sell and handle goods on the following plan: They would list the goods at the named price, and he would take them to sell under an agreement, if he sold them, he would receive 15 per cent. of the sale price of the goods, and if he did not succeed in selling the goods at the prices named, he would return the goods. On the morning of October 16th last he secured from Mr. Gauntt, the manager, of the Popular Store in Ft. Worth, goods of the value of $103.90 under such an agreement, and instead of attempting to make a sale of the goods or return them, appellant shortly thereafter left for New Orleans, La., and carried the goods with him, and there was going under a different name from the name he went under when he obtained the goods.

In order to determine whether or not appellant is guilty of the offense denounced by article 1348 of the Penal Code, it is necessary, perhaps, to review our decisions and the Code prior to 1887, when this provision of the Code was first adopted. Prior to that time it had been held there was a hiatus in our Code, and a person who lawfully obtained possession of property and then appropriated it to his own use was guilty of no offense.

In theft as defined by article 1329, it was held there must be a fraudulent taking. Muldrew v. State, 12 Tex. App. 617, and cases cited in section 2425, Branch's Ann. Code. By article 1332 it was provided that the taking must be wrongful. So that if property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, unless the taking was obtained by false pretext, with the intent at the time of taking of depriving the owner of the value of the property, and with the intent at the time of the taking to appropriate it to the use of the person obtaining possession by the fraudulent pretext. Stokely v. State, 24 Tex. App. 510, 6 S. W. 538; Morrison v. State, 17 Tex. App. 37, 50 Am. Rep. 120; Cain v. State, 21 Tex. App. 662, 2 S. W. 888. Thus, under the old articles of the Code, there must have been a fraudulent taking or a taking by false pretext, with the intent at the time of taking to appropriate the property to the use of the person taking, or a person was not guilty of theft.

In embezzlement, it was held that before a person could be convicted under article 1416, there must be a fiduciary relation existing between the parties, and if the property was appropriated by a bailee, it must be that the bailment was for the exclusive benefit of the bailor. Johnson v. State, 71 Tex. Cr. R. 206, 159 S. W. 849; Reed v. State, 16 Tex. App. 590; Wilson v. State, 47 Tex. Cr. R. 160, 82 S. W. 651.

In swindling, it was held, under article 1421, that it must have been the intention of the parties that the title pass, as well as the possession, of the property, otherwise a person could not be convicted under that provision of the Code. White v. State, 11 Tex. App. 476, and cases cited under section 2626, Branch's Ann. Code.

Prior to 1887 we had theft by fraudulent taking; theft by fraudulent pretext, and embezzlement and swindling, all relating to the appropriation of personal property of another, and under each and all of those articles it was held in numerous cases that where the possession of the property was obtained by lawful means, and the intent to convert or appropriate it was subsequently formed, a person was guilty of no offense under our Code. Quitzow v. State, 1 Tex. App. 69; Dow v. State, 12 Tex. App. 345; Morrison v. State, 17 Tex. App. 37, 50 Am. Rep. 120; Cain v. State, 21 Tex. App. 662, 2 S. W. 888; Tucker v. State, 21...