Appellant was tried under an indictment containing two counts, one charging embezzlement and the other theft by bailee The court submitted only the count charging theft by bailee, *Page 119 and appellant was convicted under this count, and his punishment assessed at four years confinement in the State penitentiary.
One of the contentions made is that the evidence offered in behalf of the State will not support a verdict of guilty of theft by bailee. The evidence of the man from whom appellant obtained the goods, Mr. G.C. Gauntt, is as follows:
"I know M. Lee and had a transaction with him on the 16th of October last year. At that time he came in my store early in the morning and took some merchandise out of the store and said he would return it or return the money on that very morning. I remember him taking out five suits, three dresses, two coats and possibly more. These goods were valued at $103.90 or more. I did not sell him the stuff but let him have it to sell or bring back and I was to pay him a commission for selling, as I had done on previous transactions, of fifteen per cent. He was to keep fifteen per cent of the value of the goods and pay me the balance. He did not bring either the goods or the money back on this occasion and I don't know what he did with that merchandise that morning. E.A. Corbett Company is an incorporated company and E.A. Corbett is one of the interested parties. I did not give this defendant my consent to sell or appropriate this property for his own use. I let him have this property in Fort Worth, Tarrant County, Texas, on the 16th day of October, 1915."
Appellant testified in his own behalf, and he admits getting the goods in question, and testifies they were sold to him on a credit. Of course, if the goods were sold to appellant, and the title to them passed to him, he could not be guilty of theft as bailee, for bailment necessarily implies that one has in his possession the goods of another. After appellant had testified and introduced his evidence tending to show a sale to him on a credit, the court in his charge instructed the jury:
"You are further instructed that if you find and believe from the evidence in this case that on or about the date alleged in the indictment and at the same time of the transaction between the defendant and the witness Gauntt, the same being the transaction alleged in the indictment, that the defendant had a conversation with E.A. Corbett in which conversation and at which time the said E.A. Corbett agreed to extend and did extend to the defendant credit to the amount of $150 and that as a result of said conversation and in pursuance of said agreement, if any, E.A. Corbett Company, acting through its agent, the witness Gauntt, sold to the defendant the goods described in the indictment on credit, and if you believe that the disposition of said goods to the defendant at said time and place was a sale, as that term is hereinafter defined and was not a bailment, as that term has been hereinbefore defined, or if you have a reasonable doubt thereof, you will acquit the defendant.
"By the term `sale' is meant the agreed transfer of the title to property *Page 120 from one person to another at an agreed price for a valuable consideration either paid at the time or agreed to be paid in the future."
Having thus instructed the jury, it was not necessary for the court to give any of the special charges requested by appellant on the issue of a sale of the goods to him by the owner — this charge fully covered that issue.
If the court's charge was ever subject to the criticism that "it authorized the conviction of appellant without regard to the value of the property," it was corrected before it was presented to the jury, for the charge as given specifically required that the jury find the property was of the value of $50, or over that amount, before they would be authorized to convict.
The court's charge as given is not "vague, indefinite and erroneous," and is not upon the weight to be given the testimony. The criticism that it was "vague, indefinite and erroneous" would be too general for a review of the charge, unless it was in some way attempted to be pointed out wherein it was vague, indefinite and erroneous.
There was no error in overruling that ground of the motion for new trial alleging the incompetency of the juror G.S. Miller. It appears that appellant had a case in the County Court, and Mr. Miller was empaneled on that jury. After one witness had been introduced the court instructed a verdict of not guilty in the County Court case. When examined on his voir dire, when the jury was being empaneled in this case, Mr. Miller stated, in answer to questions, that he was on that jury in the County Court, and yet was accepted after so informing counsel. We will state, however, that counsel for appellant say they did not hear that answer of the juror. However, the court heard evidence, and Mr. Miller testifies, "At the time I was taken as a juror in this case, I did not have any opinion as to the guilt or innocence of the defendant," and no testimony was offered that he did have an opinion, or that he was biased or prejudiced in any respect.
There was no error in excluding the evidence of the witnesses Mabel Thompson, Louise Bell, and Blanch Lamont. Their testimony would relate solely to a transaction or transactions between appellant and A. Ballas, and would have no connection with or shed any light on the transaction charged in this indictment, wherein appellant is alleged to have the goods of E.A. Corbett Company as bailee in his possession, and fraudulently converted same to his own use.
The only other question presented is, whether or not the facts will support a conviction of theft by bailee. The evidence offered in behalf of the State would authorize a jury to find that appellant went to one or two merchants in Fort Worth and made arrangements with them to sell and handle goods on the following plan: They would list the goods at the named price, and he would take them to sell under an agreement if he sold them he would receive fifteen per cent of the sale price of the goods, and if he did not succeed in selling the goods at the prices named, he would return the goods. On the morning of October *Page 121 16th last he secured from Mr. Gauntt, the manager of the Popular Store in Fort Worth, goods of the value of $103.90 under such an agreement, and instead of attempting to make a sale of the goods or return them, appellant shortly thereafter left for New Orleans, Louisiana, and carried the goods with him, and there was going under a different name from the name he went under when he obtained the goods.
In order to determine whether or not appellant is guilty of the offense denounced by article 1348 of the Criminal Code, it is necessary, perhaps, to review our decisions and the Code prior to 1887, when this provision of the Code was first adopted. Prior to that time it had been held there was a hiatus in our Code, and a person who lawfully obtained possession of property and then appropriated it to his own use, was guilty of no offense.
In theft as defined by article 1329, it was held there must be a fraudulent taking. Muldrew v. State, 12 Texas Crim. App., 617, and cases cited in section 2425, Branch's Ann. Code. By article 1332 it was provided that the taking must be wrongful. So that if property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, unless the taking was obtained by false pretext, with the intent at the time of taking of depriving the owner of the value of the property, and with the intent at the time of the taking to appropriate it to the use of the person obtaining possession by the fraudulent pretext. Stokely v. State, 24 Texas Crim. App., 509; Morrison v. State, 17 Texas Crim. App., 34; Cain v. State, 21 Texas Crim. App., 662. Thus, under the old articles of the Code, there must have been a fraudulent taking or a taking by false pretext, with the intent at the time of taking to appropriate the property to the use of the person taking, or a person was not guilty of theft.
In embezzlement, it was held that before a person could be convicted under article 1416, there must be a fiduciary relation existing between the parties, and if the property was appropriated by a bailee, it must be that the bailment was for the exclusive benefit of the bailor. Johnson v. State,71 Tex. Crim. 206, 159 S.W. Rep., 849; Reed v. State, 16 Texas Crim. App., 586; Wilson v. State, 47 Tex.Crim. Rep..
In swindling, it was held, under article 1421, that it must have been the intention of the parties that the title pass, as well as the possession, of the property, otherwise a person could not be convicted under that provision of the Code. White v. State, 11 Texas Crim. App., 769, and cases cited under sec. 2626, Branch's Ann. Code.
Prior to 1887 we had theft by fraudulent taking; theft by fraudulent pretext, and embezzlement and swindling, all relating to the appropriation of personal property of another, and under each and all of those articles it was held in numerous cases that where the possession of the property was obtained by lawful means, and the intent to convert or appropriate it was subsequently formed, a person was guilty *Page 122 of no offense under our Code. Quitzow v. State, 1 Texas Crim. App., 65; Dow v. State, 12 Texas Crim. App., 343; Morrison v. State, 17 Texas Crim. App., 34; Cain v. State, 21 Texas Crim. App., 662; Tucker v. State, 21 Texas Crim. App., 699; Williams v. State, 22 Texas Crim. App., 332; Hernandez v. State, 20 Texas Crim. App., 151; Stokely v. State, 24 Texas Crim. App., 509.
Tested by the rules announced in these provisions of the Code, and as construed by this court in the decisions cited, appellant was not guilty of theft by fraudulent taking, for the possession of the goods was voluntarily surrendered to him by the owner; he can not be said to have obtained possession of them by fraudulent pretext with the intent at the time of taking to appropriate to his own use, and deprive the owner of the value of the goods, for prior to this time he had obtained goods on the same terms, and lived up to the agreement, and no one can say that at the very time of taking he did not intend to live up to the agreement, and the conversion or appropriation of them to his own use was not a subsequently formed design; it was not swindling, because the evidence for the State would show there was no intention to pass the title to the goods to appellant, and the court instructed the jury if there was such intent to acquit appellant. It was not embezzlement, because no fiduciary relation is shown to have existed between the parties, and the bailment was not for the exclusive use of the bailor, but was for the benefit of both bailer and bailee.
If the evidence for the State makes any offense, it was properly brought under article 1348, which was passed in 1887, and was intended to cover an appropriation of the property of another, not theretofore denounced by our Code, and that was where property of one person was obtained by another by contract of hiring or borrowing, or other bailment, and such person, while having possession, should fraudulently convert it to his own use, he should be held to be guilty of theft of such property. It has been frequently held by this court that this statute covered every character of bailment, except one for the exclusive use and benefit of the bailor. Fulcher v. State, 32 Tex. Crim. 621; Malz v. State, 36 Tex.Crim. Rep.; Harding v. State, 49 Tex.Crim. Rep.; Northcutt v. State, 60 Tex. Crim. 259; Thompson v. State, 67 Tex.Crim. Rep., 150 S.W. Rep., 181; Height v. State, 68 Tex.Crim. Rep., 150 S.W. Rep., 908; Creale v. State, 71 Tex.Crim. Rep., 158 S.W. Rep., 268; Himelfarb v. State, 76 Tex.Crim. Rep., 174 S.W. Rep., 586; Butler v. State, 49 Tex.Crim. Rep..
In this case appellant had been dealing with this merchant and other merchants in Fort Worth, getting goods to sell on commission under an agreement to return the identical goods if he did not succeed in selling them. Under the State's testimony he obtained the goods in this instance on those terms, and after securing them he carried them out of the State and appropriated them to his own use. Under our view of the law, and the facts of this case, this is the identical character *Page 123 of offense article 1348 was passed to punish, and which had theretofore been held to be no offense under our Code.
The judgment is affirmed.
Affirmed.