The State has filed a motion for rehearing relying on that part of Art. 1413 P. C., which is italicized by us. "The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the takingthough originally lawful, was obtained by any false pretext, orwith any intent to deprive the owner of the value thereof, andappropriate the property to the use and benefit of the persontaking, and same is so appropriated, the offense of theft iscomplete."
The record shows that this case was tried on the theory now urged by the State in the motion for rehearing; that is, regardless of any false pretext, if appellant came into possession of the property with the owner's consent, but with the intent at the time to deprive the owner of its value, and to appropriate it to the use and benefit of appellant and the same was so appropriated, the offense of theft was complete.
As we understand the facts as made by the State the owner was induced to part with both the possession and title to the property by the false pretext of appellant that he had sufficient money in the bank to cover the check given in payment for the property except a small amount which would be placed in the bank within two days, when in truth he had no funds at all in the bank and had none for about two years prior to drawing the present check. The owner makes it clear from his testimony that he would not have sold the cattle on credit. If no false pretext was resorted to by appellant then this transaction was a pure case of purchase and sale in which both possession and title passed to appellant, but the court declined to so tell the jury by refusing to respond to the objections to his charge as pointed out in our original opinion.
It is apparent from a review of the cases in which present Art. 1413 P. C., has been under consideration that in its application the court has sometimes used general expressions which have caused confusion, and yet when considered in connection with the facts of each particular case the holding of the court has been generally uniform. In Segal's case,98 Tex. Crim. 485, 265 S.W. 911, the State contended for the very construction of said Art. 1413 now again urged by the State. Segal bought on a credit a quantity of merchandise. No falsepretext was used. *Page 392 The owner delivered both the possession and the title to Segal. He sold the merchandise and failed to pay for it. The State contended that although false pretext was absent, yet under the second provision of Art. 1413 if at the time Segal procured possession of the merchandise he had the intent to deprive the owner of the value thereof, and to appropriate it to Segal's own use and benefit, and did so appropriate it, he would be guilty of theft. The opinion in the case mentioned reveals that Judge Morrow made an exhaustive examination of the question and reviewed many authorities. Three propositions are stated in the opinion, which we here reproduce, italicizing the pertinent portions.
"(1) One who, with a preconceived design to fraudulently deprive the owner of personal property, obtainspossession of it, and makes use of the possession to convert the property to his own use, would not be excused from a charge of theft by the fact that the owner consented to part with thepossession of his property. This we understand to be a general rule often applied in our own and other jurisdictions."
"(2) When the owner of property voluntarily parts, not onlywith its possession, but with the title to the property aswell, the offense is not theft. It may, under certain circumstances, be swindling; but one having both the possessionand the title to property does not, by converting it, becomeguilty of theft, notwithstanding the acquisition withfraudulent intent.
"(3) This uniform construction of the statute has prevailed, notwithstanding the re-enactment of the statute unchanged in the several revisions of the Code, thereby giving to the statute legislative sanction of its judicial interpretation. The proposition that the acquisition of property upon a fraudulent pretext by the receiver or upon his fraudulent intent will not support a conviction for theft if it appears that the owner intended to part with both possession and title is declared by the courts and text-writers." Many authorities are cited in the opinion supporting each of the three propositions.
The opinion concludes in the following language: "(4) The evidence in the instant cases shows that the goods in question were sold to appellant on credit. They were delivered to him without reservation of title. The intent of the owner was manifestly to part with both the possession and title of the goods, and to vest the ownership in the appellant. They became his property to do with them as he pleased. Under the precedent cited, he cannot be held guilty of theft." *Page 393
So we say in the present case, if there was no false pretext, — and the jury had a right to determine that issue — the owner parted with both the possession and title to his property and appellant — in the absence of a false pretext — would not be guilty of theft.
In Quitzow v. State, 1 Tex. Cr. App. 65, decided in 1876, the very statute which is now Art. 1413 P. C. was under construction. This was before present Art. 1429 P. C. — theft by conversion — was enacted, which came into the code in 1887. Quitzow hired a horse to be used, as he represented, to go to a certain place for a certain purpose, and was to return the horse the same or the next day after hiring it. This he did not do, but so used the horse as to show a conversion to his own use. In construing what is now Art. 1413 P. C. Judge White quotes with approval from 1 Bishop on Cr. Law, Sec. 1017, as follows: " 'If a man, meaning to steal his neighbor's goods, fraudulently prevails on his neighbor to deliver them to him, under the understanding that the property therein is to pass, he commits neither larceny nor any other crime by the taking, unless the transaction amounts to an indictable cheat. But if, with the like intent, he fraudulently gets leave to take the possession only, and takes and converts the property in the goods, he becomes guilty of larceny; because, while his intent is thus to appropriate the property, the consent which he fraudulently obtained covers no more than the possession.' "
In its motion for rehearing the State relies on Nichols v. State, 109 S.W.2d 1057 and Newcomb v. State, 131 Tex. Crim. 30,95 S.W.2d 456. There are some general expressions in those two opinions that may be somewhat confusing, but when the facts are considered the result in each of the cases mentioned is not out of line with the holding in Segal's case, nor with anything that has been said in this opinion. Nichols negotiated with one Copeland to purchase certain cattle and the price was agreed upon. After the cattle were loaded in a truck and driven away Nichols then told Copeland he did not have the monty then to pay for the cattle, but had made arrangements to have the money in the bank on the following morning. Under the facts both the possession and title to the property passed to Nichols, and he made no false statement with reference to the matter until after the cattle had been received by him and had left the possession of Copeland. In Newcomb's case Douthit was the owner of certain cottonseed and had made arrangements with Newcomb and other parties to haul the cottonseed and deliver them at a certain place. They did *Page 394 get two loads of seed and delivered them according to their agreement with Douthit. Before they got the third load Newcomb and a co-principal agreed to get the third load of seed and appropriate them to their own use. The case was decided upon the proposition that appellant had authority to take the seed and haul them where directed by Douthit, and that if before taking possession of the third load they had decided to take them to another place and there sell them and appropriate the money that they had no authority from Douthit to thus handle the seed, and thus had no authority from Douthit to take possession of the property. It is apparent that Douthit never parted with the title to the seed, but only agreed to part with the possession thereof in order that Newcomb and his co-principal might take the seed to the place directed; so the result of the holding in the Nichols case and in the Newcomb case is in line with the holding in the original opinion in the present case.
It is our view of the law that in determining whether the offense of theft has been committed under the provisions of Art. 1413 P. C. that it should always be kept in mind to determine if the owner of the property parted with the title as well as the possession, especially so in the absence of false pretext. If this be done we think less confusion would arise in cases of this character.
We desire to make it clear that under some circumstances the offense of theft would be complete although the owner of the property parts with both the title and possession thereof, if he is induced to do so by some false pretext, and the other elements are present which constitutes the offense. One reason is that the false pretext may be such that it involves future happenings and would not support a swindling charge. Illustrative, see Contreras v. State, 118 Tex.Crim. R.,39 S.W.2d 62; White v. State, 123 Tex.Crim. R.,58 S.W.2d 530; Sherman v. State, 124 Tex.Crim. R., 62 S.W.2d 146; Hoovel v. State, 125 Tex.Crim. R., 69 S.W.2d 104; Haley v. State, 127 Tex.Crim. R., 75 S.W.2d 272; Baldwin v. State, 132 Tex.Crim. R., 104 S.W.2d 872; Lovine v. State, 136 Tex.Crim. R., 122 S.W.2d 1069.
We have written at some length on the State's motion for rehearing in an effort to clarify if we could the questions involved, and it follows from what we have said that we remain of the opinion that the case was properly disposed of in our original opinion.
The State's motion for rehearing is overruled. *Page 395