Smith v. State, 21335.

• Decision Date: 08 January 1941
• Docket Number: No. 21335.,21335.
• Parties: SMITH v. STATE.
• Court: Texas Court of Criminal Appeals

148 S.W.2d 844

SMITH v. STATE.

No. 21335.

Court of Criminal Appeals of Texas.

January 8, 1941.

Rehearing Denied March 19, 1941.

Commissioners' Decision.

Appeal from District Court, Burnet County; Raymond Gray, Judge.

V. C. Smith, alias Van Smith, was convicted of theft by bailee of the property over the value of $50, and he appeals.

Affirmed.

F. H. Hammond, of Burnet, for appellant.

Carlos C. Ashley, Dist. Atty., of Llano, Thos. C. Ferguson, Sp. Pros., of Burnet, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is theft by bailee of property over the value of fifty dollars. The punishment assessed is confinement in the state penitentiary for a term of three years.

It appears from the State's evidence, as disclosed by the record, that Mr. L. S. Chamberlain and his wife, Ruth Lamon Chamberlain, intended to build a home. They engaged a carpenter to assist in drawing plans for the house and to prepare a list of the material necessary to construct such a home. After they had agreed upon the plan, the carpenter made a complete list of the material required. This list was presented to appellant, who was apparently engaged in the lumber business, with the purpose of having him make a price on the material. He agreed to furnish all the specified material for the sum of $1,295.81. However, in the course of the construction of the building some minor changes were made which increased the price of the material approximately one hundred dollars. About the first of August, 1939, which time the home was almost completed, Mr. and Mrs. Chamberlain contemplated the building of a garage with an apartment. They consulted the appellant about obtaining from him some material on credit. He suggested that they had better make application to the F. H. A. for a loan. Appellant prepared, or caused to be prepared, an application for a loan to them, and they, upon his suggestion, executed a note in the sum of $2,500, payable to appellant, secured by a deed of trust on the newly constructed home, together with a designation of other property as their homestead. After a few weeks had passed, Mr. Chamberlain, having heard nothing from the application, inquired of appellant as to what had become of it. Appellant advised him that it was turned down but that he was trying to get a bank at Temple to carry it. It was further shown that as soon as appellant obtained the note and deed of trust, he had the deed of trust recorded and sold the note, which was payable in installments of $27.50 per month, to a bank in Bertram, Texas, for the sum of $1,975. Appellant paid the first installment due on said note. When the second installment became due, the bank notified Mr. Chamberlain, and this was the first intimation he had that appellant had sold the note and diverted it from the object of their agreement.

Appellant took the witness stand and testified that after Chamberlain had paid him a total of $1,314.93 on the material, he still owed him $2,533.16, and the note and deed of trust were given for the unpaid balance.

Appellant's first complaint is that the trial court erred in declining to sustain his motion to quash the indictment, which contained four counts. The first count, under which he was convicted, omitting the formal parts thereof, reads in substance as follows:

"That V. C. Smith, alias Van Smith, on or about the 1st day of August, A. D., one thousand nine hundred and thirty nine and anterior to the presentment of this Indictment, in the County of Burnet, State of Texas, having possession of a certain promissory note, dated August 1st, 1939, for $2500.00, and of the tenor following: (Here follows a description of the note which is set out in haec verba.)

"And also having possession of a certain Deed of Trust lien in writing of even date with said note, granted by L. S. Chamberlain and wife, Ruth L. Chamberlain, to secure said note, purportedly creating a lien upon certain lands and premises in the City of Burnet, County of Burnet, State of Texas, which Deed of Trust is shown of record in the Deed of Trust Records of Burnet County, Texas, in Volume 23, page 448, et seq., which said note and lien was then and there of the value of Two Thousand Five Hundred Dollars, and was then and there the property of L. S. Chamberlain and Ruth L. Chamberlain, by virtue of a bailment between them and the said V. C. Smith, alias Van Smith, and the said V. C. Smith, alias Van Smith, did then and there unlawfully and without the consent of the said L. S. Chamberlain and Ruth L. Chamberlain, the owners, fraudulently convert said note and lien to his, the said V. C. Smith, alias Van Smith, own use and with the intent to deprive the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, of the value of the same."

Appellant claims that the indictment failed to charge him with any offense for the following reasons:

(1) Because the note, being set out in the indictment, shows upon its face that it was made payable to him; that he was the owner thereof and could not be guilty of stealing his own property; that there are no innuendo averments explaining how or in what manner L. S. Chamberlain and Ruth Lamon Chamberlain acquired ownership or possession thereof, together with the deed of trust, upon the real estate located in Burnet County by which the note was secured.

(2) Because the instrument upon which the prosecution is based is ambiguous, uncertain and indefinite, in that it fails to advise him of what he will be required to meet with proof upon his trial; that there is no allegation of what the said bailment was, nor the nature thereof, etc.

(3) Because it fails to negative the nonconsent of the alleged joint owners of the property described therein.

Appellant's assertion that one cannot be guilty of theft of his own property is a misconception of the law. Article 1416, P. C., specifically states four conditions which would make one guilty of theft of his own property. However, this statute has no application to the instant case.

It is charged in the indictment that the note was of the value of $2,500; that it was the property of L. S. Chamberlain and Ruth L. Chamberlain; that appellant obtained possession thereof by virtue of a bailment between them and him and that he did then and there unlawfully, and without the consent of the said L. S. Chamberlain and Ruth L. Chamberlain, the owners thereof, fraudulently convert said note and lien to his own use with the intent to deprive the said L. S. Chamberlain and Ruth L. Chamberlain, the owners, of the value thereof.

Appellant being charged as a bailee, it was not necessary to aver the particular facts constituting the bailment; nor was it necessary to state how he came to be selected as a bailee. See Section 2522, Branch's Ann.Tex.P.C.; McCarty v. State, 45 Tex.Cr.R. 510, 512, 78 S.W. 506; Stein v. State, 132 Tex.Cr.R. 350, 104 S.W.2d 508. However, in the Stein case, supra, Judge Hawkins dissented.

With reference to the want of consent of the alleged owners, it will be observed that it is charged in the indictment that appellant did then and there unlawfully, and without the consent of L. S. Chamberlain and Ruth Chamberlain, fraudulently convert, etc. We construe this language to mean that the note was converted without the consent of L. S. Chamberlain and also without the consent of Ruth L. Chamberlain. The note was made payable to the appellant and secured by a deed of trust on real estate in Burnet County to be used by him in obtaining from the F. H. A. (the Federal Government) for L. S. Chamberlain the amount of money therein specified, and the money so obtained was to be delivered by appellant to Chamberlain. The note was not the property of the appellant. He merely had a possessory interest in the note. It was delivered to him under an agreement for a specific purpose; and when he violated the agreement, his possession thereof ceased to be permissive and the disposition thereof, contrary to the agreement, was an appropriation of the note.

Appellant cites us to a number of cases as supporting his contention, among them being Arseneaux v. State, 63 Tex.Cr.R. 566, 140 S.W. 776. In our opinion, the cases cited are not applicable here. In those cases it was not alleged that the property was taken without the consent of each of the owners. We think that this case comes within the rule announced by this court in Taylor v. State, 62 Tex.Cr.R. 611, 138 S. W. 615; Butler v. State, 49 Tex.Cr.R. 159, 91 S.W. 794.

The record discloses that appellant made no effort to transfer the note to the F. H. A. in exchange for money, but immediately upon obtaining possession thereof, sold it to the Farmers State Bank at Bertram, Texas, for $1,975. The deed of trust was but an incident to the note. It followed the note, and when the note was paid or cancelled, it extinguished the deed of trust. Hence the averment that appellant appropriated the deed of trust was surplusage. When he took the note to Bertram with the purpose of selling it to the bank and appropriate the money to his own use, he repudiated his contract with Chamberlain, and his right to the possession thereof ceased because his intent had changed from a lawful to an unlawful purpose. We therefore overrule his contention that the court erred in declining to sustain his motion to quash the indictment.

Appellant complains of the action of the trial court in declining to sustain his motion to require the State to elect upon which of the three counts in the indictment it would seek a conviction. The indictment in this case grew out of a single transaction. It charged appellant in the first count with having converted as bailee a note for $2,500 described in the indictment in the second count with having embezzled the note, and in the third count with having embezzled the proceeds of the note. It seems to be the settled rule in this state that where only one act or transaction is charged...