Appellant was convicted of theft as bailee, and his punishment assessed at three years confinement in the penitentiary.
The indictment was in four counts: the first alleged theft as bailee of the property of A.N. Prince; the second, embezzlement of the property of the same person; the third, theft as bailee of the property of W.S. Willis; and the fourth, embezzlement of the property of said Willis.
The court committed no error in overruling appellant's motion to quash the indictment on the ground that it was ambiguous in that the first two counts charged the theft and embezzlement of the property of Prince, and the second two, that of Willis. The rule is, that an indictment may contain as many counts charging the same transaction as is thought necessary to meet the emergencies under the testimony, that is, to meet the proof as it transpires and to prevent a variance. (1 Branch's Ann. P.C., sec. 507, and cases cited.)
The court committed no reversible error in refusing to require the State to elect between the counts alleging the theft and embezzlement of the property of Prince and the theft and embezzlement of the property of Willis. It is not shown when this motion was made and acted upon by the court. However, the court in his charge submitted only those counts applying to Willis and submitted neither as applicable to Prince. This was an election sufficient to meet appellant's motion, even if well made.
The theft and embezzlement alleged was of money and not of any check. It is true the proof showed that appellant procured the money on a check and converted the money after he had procured it. It was, therefore, unnecessary to produce the check. However, if it had been, the record shows that the check was in the possession of an absconded *Page 14 "pal" of appellant, and that it was, therefore, impossible to produce the check even if it had been necessary to do so.
The proof did not show, nor tend to show, that appellant had any interest in the money he stole as bailee. Hence, the court did not err in refusing his charge that if he had any interest in the money, he would be guilty of no offense. Besides, the request for such an instruction is not raised in such a way that we could review it under the recent statute and decisions.
The evidence was clearly sufficient to support the conviction. It is unnecessary to detail it. Malz v. State, 36 Tex. Crim. 447. See, also, Leonard v. State, 56 Tex.Crim. Rep.; Harding v. State, 49 Tex.Crim. Rep.; Goodwyn v. State, 64 S.W. Rep., 251.
The sentence does not comply with our indeterminate sentence law. It will, therefore, be necessary for it to be reformed so as to comply therewith, which is hereby ordered.
The sentence will be reformed and the judgment affirmed.
Affirmed.