I am concurring in the opinion overruling appellant's motion for rehearing and feel constrained to give expression to *Page 172 my reasons for so doing. According to my view, the gravemen or burden of the proof lies not in the facts surrounding the final disposition of the eighty-one head of cattle as detailed in the record, but rather in the embezzlement which is completed by the fraudulent misapplication or conversion of the cattle — not of the money received for the sale of the cattle.
Mr. Stream, Vice President of the Western Hereford Exchange, testified that his company was engaged in the business of buying cattle and shipping them to Iowa. Appellant was employed as a buyer for that company. His duties were to buy cattle and sheep and ship the same to Iowa to the company. He had no authority to sell in Texas or to keep them for any purpose. Stream identified a draft signed by appellant for $3,091.21, with bill of sale attached, showing the transfer of eighty-one head of cattle on October 24, 1940, to Western Hereford Exchange. This draft was paid, but the company never received the cattle.
The indictment alleged the embezzlement of eighty-one head of cattle and made no charge of the embezzlement of money. By direct testimony, it is shown that appellant came into possession of the cattle and that the company never received them, thus making out a prima facie case of embezzlement. True it is that it was further shown that appellant sold the same number of cattle the next day, and used at least a portion of the proceeds in the payment of his private debt. This might be taken as additional proof that he embezzled the cattle, but such additional proof was not necessary to show an embezzlement as charged. Appellant might have the cattle now and still be guilty of embezzlement. He might have elected to keep them and merge them with his own herd, yet the offense would be complete. He was not charged with the unlawful sale of the cattle, or the misapplication of the funds received therefor. The receipt of the funds was but an ancillary matter, the offense being complete when he failed to deliver the cattle to their owner. What was done with the cattle was, I think, permissible to be shown. See Hendricks v. State,55 S.W.2d 839.
I am of the opinion the following holding in Steadham v. State, 40 Tex.Crim. Rep., correctly states the rule:
"It is also insisted that the court should have charged the law applicable to a case of circumstantial evidence. As before stated, the fraudulent conversion is not a disputed fact, under the evidence, and therefore it was not necessary to charge the law on circumstantial evidence." *Page 173