The motion for rehearing filed in this case challenges the correctness of the opinion of the court affirming the judgment of conviction on the ground, substantially, that the charge of the court below, held by us to be good, was fatally defective in that, as a necessary fact on which to base a conviction, the jury should have been required to find, as a fact, that when appellant sold the horse in question, that he sold him as his own property. The charge of the court in the case of Epperson v. State, 22 Texas Crim. App., 694, contains such clause, and the jury, by the terms of the charge, was required to find in that case that Epperson had sold the organ alleged to have been embezzled as his own property, and not as agent for the owner. The charge in the case of Huggins v. State, 42 Tex.Crim. Rep., 60 S.W. Rep., 52, contains a similar clause and is substantially identical with the charge in the Epperson case. We have been cited to no authority, however, which holds that it is essential that the charge should so instruct the jury, nor can we conceive how or why it should be essential so to do. In *Page 647 this case there was no suggestion either in the testimony of Kesterson, the person to whom the horse was sold, or the appellant himself that the animal in question was dealt with in any other respect than his own property. Kesterson testifies to an absolute sale of the property by appellant; appellant denies the sale, but in substance affirms that he had hypothecated the horse for sixty dollars and intended to redeem him. Therefore, under the facts of this case the issue, in any event, seems hardly to be raised; but we do not believe it important in any case. It seems to us that the vital question and the true criterion in every case is: did the party charged, at the time of the conversation, then have the specific intent to defraud the owner of the property? If he did, he would seem under the law to be guilty. If at the time, however, he sold the property, he did so in pursuance of his agency and in recognition of the right of ownership of the real owner, and he subsequently conceived the fraudulent intent to convert, misapply and embezzle the moneys derived from the sale of such property, he would be guilty of embezzlement of the money and not the property sold. In the celebrated case of Leonard v. State, 7 Texas Crim. App., 417, Judge Clark, in his usual clear and lucid manner, in discussing the general question of embezzlement, uses this language: "Addressing ourselves to the points presented, we are of opinion that notwithstanding the appellant may have had authority to make a sale of the cotton alleged to have been embezzled, yet if he sold the same with the formed intention to defraud the owner, and to convert it to his own use and benefit, he is as much guilty of embezzlement of the cotton as if he had no authority to make such sale. What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted. There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading; and the appellant in this case was charged in the usual form, that he `did embezzle, fraudulently misapply, and convert to his own use' the particular property described. If he sold it with the honest purpose of delivering the proceeds to the owner, and after such sale conceived the fraudulent intention, he would not be guilty of embezzlement of the cotton at least. But if the sale was simply a means to effectuate his fraudulent purpose to convert the property to his own use — in other words, to steal it — it is as much an act of conversion as if he had shipped it clandestinely to a foreign port, and there disposed of it. This distinction is not unsupported by authority, and we are referred to none of a contrary effect."
The rule there laid down is indeed the true test: Did appellant at the time of the sale have in his mind the specific intent and purpose to misappropriate and misapply the proceeds thereof? This *Page 648 issue was expressly submitted to the jury in the court's charge, and they were instructed if such was not his purpose, or if they had a reasonable doubt thereof they should acquit. The argument is made, however, that if in making the sale appellant did so in recognition and in subordination of the owner's right in the property, that the purchase price would be and remain the money of the true owner. Undoubtedly so. And if there had been a repudiation of such ownership and a sale by the appellant, the proceeds would not of necessity be the property or money of appellant. At least the owner would have the right to ratify the sale and to recover the purchase price. The adoption of any other rule would make it rest in the power of the appellant, notwithstanding that at the very moment of the sale he had the fraudulent intent to misapply the funds, to make an election as to whether his crime should be that of embezzlement of the property delivered into his custody or the proceeds thereof. If this power existed, and the subsequent appropriation would be of the money and not of the property, it would place it within the power of a dishonest agent, by selling valuable property for less than fifty dollars, to bind the State to prosecute for an offense less than a felony. If a guilty purpose exists in the mind of the agent at the time of the sale to misapply and misappropriate the proceeds thereof, he is under all rules of law and justice, all rules of law and reason, guilty of the offense of embezzlement of the property. Nor can he change this rule of law by statement, suggestion or claim that he is selling the property in recognition of the owner's right and thereby change and alter the nature of his crime, if in fact he then has the guilty purpose to misapply and embezzle the proceeds thereof. The argument of counsel for appellant is put with much skill and force and may find some support in the language of the cases referred to, but it seems to us is illogical and fallacious.
It is claimed that the court erred in grouping facts and in instructing the jury that if the facts so stated were true the appellant would be guilty of the crime of embezzlement, and in not leaving the jury to determine whether, if the facts so found were true, appellant would be guilty of such an offense. The charge of the court in substance instructed the jury, if they found the agency as charged and possession of appellant under such agency and the subsequent sale by him with the guilty purpose of misapplying the proceeds, then if these facts were found to be true beyond a reasonable doubt, that he would be guilty of the crime of embezzlement. In this there was no error. It was left to the jury under an appropriate charge to find the facts. If these facts existed the law fixes the nature, the name and the punishment for the offense.
We have carefully considered the able argument of counsel for appellant, and upon the most mature reflection find there was no error in the proceedings of the court below. *Page 649
It is therefore ordered that the motion for rehearing be and the same is hereby in all things overruled.
Overruled.