In his motion for rehearing and oral argument appellant contends that there can be no embezzlement from a corporation by a bookkeeper; also that appellant was not a bailee in this case and there could not be a conviction under an indictment charging embezzlement by bailee.
We are unable to perceive any reason why one who is a bookkeeper should ipso facto be held immune from liability for embezzlement when charged in an indictment simply as a bailee, under that part of Art. 1534, P. C., which provides generally for the punishment of "any consignee or bailee of money or property," etc., who fraudulently embezzles or converts same.
This court in Fulcher v. State, 32 Tex.Crim. Rep., seems to adopt as a sufficient definition of bailment in a case like this the following: "A delivery of personal property to another for some purpose, upon a contract, express or implied, that such purpose shall be carried out." See also Reed v. State, 16 Tex.Crim. App. 589. In Goodwyn v. State, 64 S.W. 251, we upheld a conviction based upon an implied contract resting upon facts of much less cogence than those in this record. We there said: "Clearly there was an implied obligation on his part to deliver the money to the county treasurer. Having failed to do so, and having converted the money to his own use and benefit, we think appellant has violated the statute under which he was convicted." In Collins v. State, 244 S.W. 153, we said, in substance, that the delivery and acceptance of money to be paid to another sufficiently constitutes the acceptor the bailee of the deliverer. This would be especially true if the acceptor owed a duty to the deliverer and had any character of employment under the latter in the course of which he was called upon to deal with the money or property of the deliverer. In the instant case the testimony shows that appellant was charged with the entire results in the office of the Taylor Hardware Company, *Page 520 so far as handling the cash was concerned, was the manager of the office without any interference, attended entirely to the deposits in the bank, and kept the bank accounts, received the money that came into the office; received the remittances that came by mail; made entries in the books thereof, and made the bank deposits. We think this testimony fully showed that appellant was a bailee and embraced under the terms of said statute, and as such could be guilty of embezzlement of the funds which came into his hands by virtue of his said position.
It is also urged that if there was a sufficient implication of duty upon appellant to make him a bailee of the $3,750 check which came into his hands, that when he deposited said check to the credit of his employer corporation, he had met his duty and was free from liability. Without discussing this abstract question, we observe that there is an entire lack of any showing that appellant ever deposited said amount to such credit, but, according to our view, on the contrary the record shows that he only deposited $2,750 of said amount and kept the other $1,000. In his motion appellant states that the fact of such deposit by him is shown by the check itself, as exhibited in the statement of facts. Inspection of the check as same appears at the place indicated by appellant shows a check dated September 15, 1924, at Granger, for $3,750 payable to the Taylor Hardware Company or order, drawn on the First National Bank of Granger. On the reverse side of said check, made with a rubber stamp, appears the words "Pay to City National Bank, Taylor Texas, or order. The Taylor Hardware Company." In another place also rubber stamped is the inscription "Pay to the order of any bank, banker or Trust Company 88-185, September 16, 1924. Previous endorsements guaranteed. (Signed) City National Bank, Taylor, Texas." There was also on the reverse side of said check a perforation as follows: "Paid 9-18-24." We find nothing in any of these things upon either side of said check which has any bearing as showing that the entire $3,750 was deposited by appellant. The testimony in another place specifically sets out that a cash book journal then before the witness reflected the bank deposits made by the Taylor Hardware Company on the date in question, and that in same in the handwriting of appellant on September 16 there was an entry showing that the Granger branch of said hardware company was credited with $2,750, and cash was charged with $2,750 on the same date. This same witness also testified that he had before him a book showing the deposits in the bank of said hardware company on September 16, 1924, and that same *Page 521 showed in the handwriting of appellant a deposit of $2,750 on said date. There is also the testimony of an auditor that the books of the Taylor Hardware Company showed a shortage at the close of business for September, 1924, of $1,000. Appellant introduced no testimony to combat or contradict any of the above.
We are unable to agree with any of the contentions made by appellant in his motion. We find nothing in the court's charge subject to any of the exceptions made.
No error appearing, the motion for rehearing will be overruled.
Overruled.