Stein v. State

• Decision Date: 03 February 1937
• Docket Number: No. 18665.,18665.
• Citation: 104 S.W.2d 508
• Parties: STEIN v. STATE.
• Court: Texas Court of Criminal Appeals

104 S.W.2d 508

STEIN v. STATE.

No. 18665.

Court of Criminal Appeals of Texas.

February 3, 1937.

Rehearing Denied April 28, 1937.

Commissioners' Decision.

Appeal from Criminal District Court, Bexar County; W. W. McCrory, Judge.

I. Stein was convicted of theft by bailee, and he appeals.

Affirmed.

Dave Watson, of San Antonio, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CHRISTIAN, Judge.

The offense is theft by bailee; the punishment, confinement in the penitentiary for five years.

It was alleged in the indictment, among other things, that appellant possessed the property in question by virtue of a contract of bailment with R. D. Coley. Appellant made a motion to quash the indictment on the ground that it failed to allege "the kind or character of bailment or contract." In Collins v. State, 92 Tex.Cr.R. 388, 244 S. W. 153, we held in an embezzlement case that the description of the accused in the indictment as bailee was sufficient. See, also, Dowdy v. State (Tex.Cr.App.) 64 S.W. 253, and Goodwyn v. State (Tex.Cr.App.) 64 S. W. 251. We quote from Malz v. State, 36 Tex.Cr.R. 447, 451, 34 S.W. 267, 37 S.W. 748, as follows:

"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.Ency.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 apprehend that no person who receives the possession merely of any character of personal property in trust, upon some contract, express or implied, that the trust shall be performed in regard thereto, but knows that the said property is received in bailment, is not his own, and is to be restored to the owner after the trust has been performed, no matter what the character of the trust may be. Indeed, under our statutes with reference to embezzlements, no question has ever been made with reference to the term `bailee,' as used in said statute, and it has been uniformly held that such term was sufficiently defined. Nor does the omission of one character of bailment, as a hiring or borrowing, restrict the meaning of the more comprehensive term `bailment.' It was a canon in the construction of criminal laws, under the common-law system, that penal statutes must be construed strictly. But our statutes authorize a liberal construction for the prevention, suppression, and punishment of crime. See Code Cr. Proc.1895, art. 25 [Vernon's Ann.C.C.P. art. 23]. It is further provided `that this Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. And no person shall be punished for an offense which is not made penal by the plain import of the words of the law.' See Pen.Code 1895, art. 9 [Vernon's Ann.P.C. art. 7]. `Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning, and all words used in this Code, except where the word, term, or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relative to which they are employed.' Id. art. 10 [Vernon's Ann.P.C. art. 8]. Holding, as we do, that the term `bailment' has a well-understood meaning, there was no necessity to further define the same in article 877, Pen.Code [Vernon's Ann.P.C. art. 1429]."

It being sufficient in an embezzlement case to charge that the accused received the property as bailee, it would seem to follow that in an indictment charging theft by bailee it is sufficient to allege that the accused was in possession of the property under a contract of bailment. The opinion is expressed that the motion to quash was properly overruled.

Appellant contends that the evidence fails to support the conviction, it being his position that if any offense was shown to have been committed, it was embezzlement, and not theft by bailee.

R. D. Coley, the injured party, testified that he delivered to appellant shelled pecans of the value of more than $50 under an agreement with appellant that he would clean the pecans and return them to him. He agreed to pay appellant a cent a pound for his work. According to the testimony of the state, appellant converted the pecans to his own use. Testifying in his own behalf, appellant denied that he had received the pecans under a contract to clean them and return them to Mr. Coley. According to his version, Mr. Coley sold him the pecans.

It is appellant's specific contention that the contract of bailment is shown to have been for the exclusive benefit of the bailor. He therefore seeks to invoke the rule that bailments exclusively for the benefit of the bailor are not comprehended by article 1429, P.C., denouncing theft by bailee, but are within the purview of article 1534, P.C., defining embezzlement. See Johnson v. State, 71 Tex.Cr.R. 206, 159 S. W. 849; Lee v. State, 81 Tex.Cr.R. 117, ...