Appellant urges that the court below erred in his charge in that part of his definition of theft which says: "If the taking, though originally lawful and with the consent of the owner, was obtained with an intent to deprive the owner of the value thereof and to appropriate the said property to the use and benefit of the person taking, and same is so appropriated, the offense of theft is complete." As we understand it, appellant's position is that, since he came into possession, by mistake, but without illegal act on his part — of a warrant which called for $1,000.00 more than he was entitled to, which warrant was thereafter the means of obtaining a thousand dollars from the state — and since his indictment was for theft not of the warrant, but of the money, the above definition would not be applicable to the facts, and would be confusing to the jury, and an attempt to apply a charge submitting such theory would necessarily be on the weight of the evidence. There can be no question of the correctness of the abstract proposition of law contained in the definition above set forth, nor do we think there can be any as to its application to the facts in this case when we keep before us the idea that the subject of the theft charged here is not the warrant, but one *Page 195 thousand dollars in money, and that in applying the law to the facts the jury were told in the charge that, if appellant obtained from an agent of the state a warrant which called for one thousand dollars in money in excess of the amount due appellant, and that he deposited said warrant in a bank for the purpose of getting from the state said thousand dollars, and that as a result of his act such thousand dollars was gotten from the state in Travis county, Texas, and so appropriated, appellant would be guilty of theft, etc. We do not think it possible for the jury to have been misled by the definition complained of, nor that it burdened the record with any matter adverse to appellant as was the situation in Bow's case,31 S.W. 170, cited by appellant.
Nor do we think complaint of paragraph 2 of the charge, to which we have just referred, well taken. Certainly there is nothing therein which would cause the jury to convict for the mere getting of the warrant, even though same called for an amount in excess of that due appellant. The court in his charge, after setting out what he deemed to be a statement concerning the receipt of the warrant, further said: "If you further find * * * that upon the receipt of such warrant * * * Speer deposited it * * * for the purpose of obtaining said $1,000.00 excess and with the intent of appropriating the same * * * and as a result of such deposit did take, or cause to be taken, from the State of Texas the $1,000.00 excess," etc.
Further criticizing paragraph 2 of said charge, and our statement in the original opinion that, "If appellant formed the intent to appropriate the money at the time he used the bank as an innocent agent for obtaining the money, etc., the act becomes criminal under the terms of article 1413, P. C.," appellant urges the law to be that, when one receives some check, warrant, etc., calling for more than is due him, and entertains no intent at the time of such reception, to appropriate same, he would not be guilty of theft, and further urges that the case of Hedge v. State, 89 Tex. Crim. 236, sustains this position. The case mentioned is misapprehended by appellant. We observe that in any case one who receives a check, warrant, etc., calling for more than is due, becomes punishable for the theft of the excess when he has appropriated same in pursuance of an intent to deprive the owner, etc. If such person be unaware when the check first reaches him, as in the illustration used in the Hedge case, supra, that there is any excess in its amount, the keeping of the check in his pocket for any length of time before cashing or depositing same, or becoming aware of such excess would not amount to an appropriation, in the *Page 196 absence of other testimony of such intent, but such person would be guilty when having discovered the mistake, he appropriates the excess. It seems correct, as contended by appellant, that the intent to deprive would ordinarily be inferred when deposit is made, if made by the payee in person, of the whole amount, including the excess, but the actual appropriation of the state's money in a case like this could not take place until such money has been paid out by the state.
Appellant did not testify, or offer any testimony, suggesting that he did not know of the excess at the time he deposited the warrant in question in the bank, and thus set in motion the chain of events which led to the getting of the thousand dollars excess from the state. There was some such suggestion like this in the Hedge case, supra, in which we said: "We think at the time appellant acquired said money if his acquisition was accompanied with the intent at the time to appropriate said excess, it made him guilty of theft of the money." It will be noted that what we said had reference to the acquisition of the money — not the check.
We do not find any exception to the charge in this case for failure to tell the jury that appellant must have known that the warrant received contained an amount in excess of what was due him, before any criminality would appear. Probably appellant did not take such exception because of the fact that it was in evidence that his claim and account sent from his office to the comptroller's office, upon which the warrant was issued, was for $1,626.95, and the warrant which came in response was for $2,626.95, and this latter amount was deposited by the appellant in a bank soon afterward.
We have carefully considered the well-prepared motion, and argument in support thereof, but think the case was properly disposed of originally.
The motion for rehearing will be overruled.
Overruled.