The charging part of the indictment upon which this conviction is predicated is that appellant "having possession of one head of cattle, then and there the property of Dick Anderton, by virtue of a contract of bailment between him, the said J. L. Blake, and the said Dick Anderton, did then and there unlawfully and without the consent of the said Dick Anderton, the owner thereof, fraudulently convert said one head of cattle to his, the said J. L. Blake's own use and with the intent to deprive the said Dick Anderton, the owner thereof, of the value of the same;". *Page 338
By such indictment, the State sought and obtained a conviction for theft by conversion by bailee, as defined in Art. 1429, P. C., which reads as follows:
"Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as for theft of like property."
Under this Article, the bailment which is a delivery of goods for some purpose, on a contract, which, after the purpose has been fulfilled, is to be returned to the owner, may be either one of hiring or of borrowing, or "other bailment."
In the instant indictment, the bailment is not described in any particular. Therefore, the State was, upon the trial of the case, permitted to prove any bailment that the facts supported or authorized, and this without previous notice in the indictment as to the kind or nature thereof. Such an indictment, we hold, when challenged by the appellant, is insufficient to meet that provision of our State Constitution that an accused is entitled to know the "nature and cause of the accusation against him" (Art. I, Sec. 10). In reaching such conclusion, we expressly overruled the case of Stein v. State,104 S.W.2d 508, 132 Tex.Crim. R., and Bell v. State,104 S.W.2d 511, 132 Tex.Crim. R., which were followed in the drafting of the instant indictment.
The reference to the Federal Constitution and federal authorities in our original opinion was for the purpose of showing the construction the federal courts have placed upon a question similar to that before us, and was not with the idea of suggesting that these control our state procedure.
The State's motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court. *Page 339