Nasitts v. State

• Decision Date: 28 March 1896
• Citation: 34 S.W. 957
• Parties: NASITTS v. STATE.
• Court: Texas Court of Criminal Appeals

34 S.W. 957

NASITTS v. STATE.

Court of Criminal Appeals of Texas.

March 28, 1896.

Appeal from district court, San Patricio county; M. F. Lowe, Judge.

J. M. Nasitts was convicted of a crime, and appeals. Reversed.

Mann Trice, for the State.

HENDERSON, J.

Appellant in this case was indicted under article 788, Willson's Cr. Code (see Rev. Cr. Code, art. 940). The charging part of the indictment is as follows: "That said Nasitts was then and there a private person, and as such had intrusted and delivered to him certain money, to wit, one hundred and thirteen dollars, current money of the United States, of the value of one hundred and thirteen dollars the same being the property of E. McKeown and John Donahoe, to be by the said J M. Nasitts carried; and the said Nasitts did then and there fraudulently, without the consent of the said McKeown and Donahoe, or either of them, embezzle and convert said money to his own use." Appellant made a motion to quash the indictment, which was overruled, and he reserved an exception. The article under which this indictment was framed reads as follows: "If any carrier to whom any money, goods, or other property shall have been delivered to be carried by him, or if any other person who shall be intrusted with such property, shall embezzle or fraudulently convert to his own use any such money, goods or property, either in the mass, as the same was delivered, or otherwise, he shall be deemed guilty of theft, and shall be punished," etc. Appellant is not indicted as a carrier, but as a private person intrusted with certain money to be carried by him. Who intrusted him with the money, or to whom it was to be delivered, is not alleged; and the contention of the appellant is that these matters should have been charged, in order to constitute this a good and sufficient indictment. We are not aware that the question as to how an indictment should be framed under this article has ever come before this court. In Keeller v. State, 4 Tex. App. 527, the defendant is indicted under this article, but no question was raised on the indictment. The indictment in that case, however, was not framed as in the present instance, but the allegations appear to be full, both as to the party from whom the property was received and as to the disposition to be made of it by the person to whom it was intrusted. In the ordinary indictment for embezzlement under the general statute it is held that the agency of the defendant must be alleged, and...