Malz v. State

Citation37 S.W. 748
PartiesMALZ v. STATE.
Decision Date18 November 1896
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

S. H. Russell, for appellant. Mann Trice, for the State.


This case was affirmed at the Dallas term, 1896, of this court (34 S. W. 267), and now comes before us on motion for rehearing. The only question necessary to be considered in the motion, and which was not originally raised, is as to the construction of article 877 of our Penal Code. Said article reads as follows: "Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the 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, and shall be punished," etc. The contention of the appellant is that the indictment— which in this case alleges, among other things, a pledge or pawn, and which the proof establishes—is not covered by the statute; that is, that the statute specifies a hiring or borrowing, and the expression "or other bailment" does not include other offenses, where the property may be in the hands of a bailee and converted, because the statute does not define the term "bailment," and our law requires all offenses to be defined before a conviction can be sustained, there being no offenses outside of our statute. In other words, the contention is that the word "bailment" should be specifically defined; that is, that all characters of bailment should be specified. While it is true there are a number of different sorts of bailments, which are ordinarily classed into deposits, mandates, gratuitous loans, bailments for hire, and pledges or pawns, still each of said kinds of bailment is of the same general character, and is defined "to be a delivery of personal property to another, for some purpose, upon a contract, express or implied, that such purpose shall be carried out." See Fulcher v. State, 32 Tex. Cr. R. 621, 25 S. W. 625, citing 2 Bl. Comm. p. 451; Jones, Bailm. 117; and Story, Bailm. § 2. In 2 Am. & Eng. Enc. Law, p. 40, "bailment" is defined as follows: "A transfer of the possession of personal property from one person to another, without a transfer of the ownership of it." These are standard definitions of the term, and are well understood, and there can be no difficulty about the meaning of the term "bailment." It is so plain that we...

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