The indictment charged that the automobile in question was the "property of and belonged to L.P. Shrigley" and that appellant had possession of it by virtue of a contract of bailment made with Shrigley.
Upon motion for rehearing appellant insists that the evidence having shown Mrs. Starkey to be the true owner, the indictment should be held to charge no offense because it failed to allege that *Page 649 Shrigley was authorized by Mrs. Starkey to make the contract of bailment with appellant, and in support of this proposition Nugent v. State, 89 Tex.Crim. Rep., 229 S.W. Rep., 865 is cited together with the authorities therein referred to. We think appellant has misapprehended the Nugent opinion. The indictment in that case disclosed that the property belonged to Arthur Branch, but that the contract of bailment was made by Hattie Branch, his wife, without alleging that she was authorized by her husband to make the contract; hence, it was held that upon its face the indictment was defective. The authorities cited in the opinion are based upon similar indictments. Immediately following the language quoted from Nugent v. State (supra) in appellant's brief appears the following statement evidently overlooked by him. "If Arthur Branch had gone away from home leaving his wife in the exclusive control, care and management of the hog in question, in view of re-indictment, we suggest it should contain a count alleging ownership in her and bailment made by her." From this statement it is clear we entertained the opinion that even in charging theft by conversion under Article 1348 of the Penal Code, possession could with propriety be alleged to be in the special owner of the property. Piper v. State, 56 Tex. Crim. 121, 119 S.W. Rep., 869 is directly in point supporting that view. DeGress owned a diamond ring. He had loaned it to Miss Koch, she in turn loaned it to Piper, who converted it to his own use by pawning it. The indictment alleged ownership in Miss Koch and a bailment by her to Piper. It was specifically held in that case that Article 877 Penal Code, (now 1348) was designed to meet the facts of special cases, where under the provisions of our Code no conviction for theft could otherwise be had, and was not intended to change the rule with reference to allegations or proof in respect to possession of property. Of course if Piper could have shown consent of DeGress for the former's pawning of the ring it would have been a complete defense; and so in the instant case if appellant could have shown Mrs. Starkey's consent to his conversion of the automobile the prosecution would have failed; but Shrigley being the special owner, possession and ownership was properly alleged in him and bailment by him.
The other questions presented in the motion were sufficiently considered in the former opinion.
The motion for rehearing is overruled.
Overruled. *Page 650