The conviction is for theft by bailee; punishment fixed at confinement in the penitentiary for a period of two years.
One Shrigley was in possession of an automobile which belonged to a party in El Paso and had the authority to dispose of it. He delivered it to the appellant in order that he might repair it and bring it to a condition so that it could be used. Appellant undertook to put it into repair and endeavored to sell it for $150. He had the privilege of buying it at that price and was to retain any amount above that sum that might be realized in the sale. After putting it into repair, he drove it to the city of Chicago, where, according to his testimony, it broke down and was sold by him for thirty dollars. The automobile came into his possession about the middle of June, and according to the State's testimony, he was to return it or the money in lieu of it within two weeks. After the expiration of that time, Shrigley requested its return. There was a controversy on the trial over the value of the car and the value of the repairs. This, however, is not a matter deemed of importance.
Appellant's position, as developed from his testimony, is this: He made various repairs which, at the regular price, would amount to $148.50; that he was unable to sell it for $150. He claimed, however, to have purchased the car on credit; that he was selling carbon remover and used the car with the consent of Shrigley in going from place to place in pursuit of that occupation; that his wife's relatives resided near the city of Chicago and he took her to that city. The automobile finally gave way and was sold by him as junk for thirty dollars and he had to pay ten dollars for removing it off the streets of Chicago.
Appellant takes the position that he having the right to either sell or buy the car, he could not be guilty of converting it; that his offense, if any, would be for embezzling the proceeds; that even if a conversion were possible under the facts, it took place in another state and constituted no offense against the laws of this State. He also insists that since Shrigley was a mere bailee that appellant could not be guilty of theft by bailee. In the last proposition, we think there is no merit. Within the meaning of the statute on theft, Shrigley was the owner of the car. If the State's testimony be true, appellant had the privilege of retaining the car for two weeks. At or about that time, he having failed to sell it, was requested to return it, but instead of returning it, he took it to another state, and took his family with him and ultimately disposed of the car. He was convicted of theft by bailee. If appellant bought the car on credit, manifestly he was guilty of no offense. If he took it out of the *Page 648 State with the consent of Shrigley, he committed no offense in this State. If before converting it to his own use he sold it, doubtless the offense, if any, would be the embezzlement of the proceeds, but suppose that before selling it and while in Tarrant County, Texas, he controverted it. In such event, we are aware of no rule that would prevent his conviction.
Appellant insists, however, there is no evidence that the conversion was in Tarrant County. It was there when it was delivered, and if we comprehend the testimony, it was there when it was demanded by the owner, but was afterwards removed and taken to another state. The intent of the appellant in removing it and the time and place that he formed the intent were questions of fact. We think it cannot be justly said that the circumstances do not support the inference that while in Tarrant County he formed the intent to convert the car and carried into effect his purpose by taking it to another state. It is true that this is controverted by his testimony, but the truth of his testimony was to be determined by the jury. McAlister v. State, 59 Tex.Crim. Rep., cited by appellant is not in conflict with this view. It turned upon the manner in which the question of intent was submitted to the jury for solution. In Northcutt v. State, 60 Tex.Crim. Rep., the bailee, a tenant farmer, was commissioned by the landlord to sell cotton and account for the proceeds. He sold the cotton but failed to account for the proceeds. This was embezzlement. Why? Because it was the money that was appropriated. The cases are not similar. Lee's case,81 Tex. Crim. 129, is analogous. The conviction for theft by bailee was sustained. Goods were placed in the possession of Lee by the owner with the agreement that Lee might sell the articles or return them, but for such as he sold he was to account, less fifteen per cent from the invoice price. He neither sold nor returned the articles but carried them away.
In the instant case, under the facts relied upon by the State, the appellant was the bailee and converted the automobile under circumstances justifying the conclusion reached by the jury that the offense was committed in Tarrant County.
The judgment is affirmed.
Affirmed.
ON REHEARING. June 20, 1923.