On a former day of this term the judgment herein was affirmed without consideration of the statement of facts. That matter is sufficiently explained in the original opinion.
Since the affirmance appellant has made a motion for a rehearing, asking a consideration of the facts, which we think is sufficient, and entitles him to a rehearing on the merits of his case.
The evidence shows that one of the alleged owners, Smith, sold appellant the place occupied by Smith in Donley County. Appellant moved upon and took possession of the place. Smith vacated the place. When Smith moved his effects he left what is termed in the statement of facts some "harvester aprons" or "canvasses," stating to appellant that he was not ready to move them, and if it did not inconvenience him, appellant, that he would like to leave them in the barn or under a shed. To this appellant agreed, and the harvester and aprons or canvasses were left. Subsequently, trouble arose between them, which resulted in a cancellation of their contract in regard to the sale of the place.
The State's contention is that appellant appropriated or committed theft of these aprons or canvasses. This was denied by appellant, and evidence was introduced in support of the conflicting issues. Smith testified that with the consent of appellant the property was left in appellant's barn, and that appellant had no authority to use the aprons. Appellant agrees to this part of Smith's evidence, but denies taking Smith's property, and accounts for those found in his possession by stating that he purchased same in Oklahoma before moving to Texas.
The pleadings charged theft under the general statute. Appellant's contention is, that under the State's evidence it is not theft under the general statute, but under the bailment statute. Under the facts introduced by the State there is nothing to indicate, if the goods belonged to Smith, a fraudulent intent on the part of appellant at the time he obtained possession, or rather at the time the property was left on his place in his barn. There was no false pretext used to obtain possession, and in fact the State's evidence excludes the idea there was such pretext. It is beyond any question from the State's evidence that the property was left in appellant's possession at the request of Smith. These facts, if they prove any case for the State, would prove it with reference to bailment. The property was sufficiently under the control of appellant by authority of Smith and at Smith's request to bring appellant's possession within the statute of bailment. Article 877, Penal Code.
Appellant reserved exception to the court's charge submitting the issue of general theft, and presented the issue in regard to bailment, *Page 39 which the court refused to sustain. We are of opinion the court was in error. Appellant, if guilty, is so under the statute with reference to conversion by bailment and not under the general statute. See Penal Code, art. 877; Nichols v. State, 28 Texas Crim. App., 105; Taylor v. State, 25 Texas Crim. App., 96; Cunningham v. State, 27 Texas Crim. App., 479; Fulcher v. State, 32 Tex.Crim. Rep.; Williams v. State, 30 Tex. Crim. 153; Long v. State, 39 Tex.Crim. Rep.; Malz v. State,36 Tex. Crim. 447, 37 S.W. Rep., 748.
Appellant was entitled to a charge under article 877 of the Penal Code. He should have been tried under this article and not under the general statute.
The affirmance is set aside, the motion for rehearing is granted, and the judgment is now reversed and the cause remanded.
Reversed and remanded.