McCarty v. State

• Decision Date: 27 January 1904
• Citation: 78 S.W. 506
• Parties: McCARTY v. STATE.
• Court: Texas Court of Criminal Appeals

Page 506

78 S.W. 506

McCARTY v. STATE.

Court of Criminal Appeals of Texas.

January 27, 1904.

Appeal from District Court, Parker County; J. W. Patterson, Judge.

C. H. McCarty appeals from a conviction. Reversed.

Preston Martin, for appellant. Jas. C. Wilson, Co. Atty., and Howard Martin, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of the theft of two horses, and his punishment assessed at confinement in the penitentiary for a term of four years; hence this appeal.

The conviction was under article 877, Pen. Code 1895, which makes the conversion by a bailee theft. Appellant made a motion to quash the indictment because the contract of bailment, that is, its particular character, was not set out in the indictment; and because the contract of bailment was not distinctly alleged, but only inferentially stated; and because there was no averment of want of consent on the part of the person hiring, to wit, Henry Walker. In reference to the first proposition, it has been held that it is not necessary to allege the particular character of bailment. Elton v. State, 40 Tex. Cr. R. 339, 50 S. W. 379, 51 S. W. 245.

In reference to the second objection urged by appellant, we note that he relies upon Smith v. State (Tex. Cr. App.) 42 S. W. 302, and also Elton's Case, supra. An examination of Smith's Case shows that it refers to Calkins v. State, 34 Tex. Cr. R. 251, 29 S. W. 1081. In the latter case it was held that the indictment must show a contract of bailment, and must allege with whom the bailee contracted; that the general allegation that the property was held by virtue of a contract of bailment by the accused was not sufficient. In Smith's Case, supra, it was held that the contract and the parties thereto must be directly averred, and not be left to inference. Elton's Case recognizes the principle announced in Smith's Case, but differentiated the latter from the former. In the Elton Case it was alleged that appellant had possession of the two certain horses, and the same were then and there the property of Arthur Cain, and the possession thereof had been theretofore acquired by the said Elton by virtue of a contract of hiring and borrowing made by said Elton with one D. W. May, who was thereunto duly authorized by the said Arthur Cain. Then the want of consent to the conversion by both said Cain and May was alleged. The facts of this case are substantially the same as in the Elton Case, but the allegations in the indictment are not as direct and positive. In this case it is alleged "that appellant, having possession of two horses, then and there the property of one John Gilbert, by virtue of his contract of hiring with one Henry Walker, who was acting for the said John Gilbert as the agent and employé of the said John Gilbert, did then and there, unlawfully and without the consent of the said John Gilbert, the owner thereof, fraudulently convert," etc. It will be seen that in the present indictment it is alleged that Henry Walker, from whom appellant procured possession, was acting for the said John Gilbert (the owner) as his agent and employé. It is not distinctly charged, as in Elton's Case, that said Walker was duly authorized by the said Gilbert, etc., but we get his authority from the allegation that he was acting as such agent. We think the allegation should be direct and positive, and not be left to inferences. Moreover, inasmuch as the contract of hiring in this case was made through an agent, which would seem to concur with the idea that such agent might act by the terms of the contract, or otherwise consent to the disposition of the property by the bailee, consequently the want of consent of the agent should be alleged in the indictment, as was done in Elton's Case. True, the statute (article 877, Pen. Code 1895) says that, if the conversion is made without the consent of the owner, the offense is complete; still, inasmuch as the agent directly parts with the property and his agency, and its extent is involved in the case, in our opinion his want of consent should be alleged. We think the indictment here comes within the rule laid down in Smith v. State, supra, and is not in its form like the indictment in Elton's Case. Therefore we hold the indictment defective, and it should have been quashed.

There is but one other question we deem necessary to notice; that is, the question raised by appellant as to the remarks of the prosecuting attorney concerning the failure of appellant to testify in the case. It appears from the statements of appellant's attorney on this point that, during the opening speech for the state by John W. Moyer, assistant prosecuting attorney, he used the following...