The first count in the indictment charged theft by a fraudulent taking, the second count charged theft by conversion. Conviction was under the first count, which was tantamount to acquittal of theft by conversion. The foregoing statement becomes pertinent in view of appellant's renewed insistence that reversible error was committed by the trial court in excluding the statement made by appellant to his father. The count of theft by conversion having been submitted to the jury the excluded statement was probably admissible under authority of Stapleton v. State, 107 Tex.Crim. R.,298 S.W. 578, and if conviction had been under the second count a question so serious would have been presented as might have called for reversal; but appellant cannot again be tried for theft by conversion. If the offered testimony would be inadmissible upon another trial for theft by a fraudulent taking why the necessity of a reversal? But appellant insists that it was admissible under the authority of Rumbo v. State, 28 Tex.Crim. R., 11 S.W. 680, and that our original opinion is in direct conflict with the holding in Rumbo's case. We think not when the facts of the Rumbo case are analyzed. When that offense was committed the conversion of property possession of which had been legally acquired was not an offense. There was no question but that Rumbo was in legal possession of the horse with the theft of which he was charged. To make out its case the state was relying on the theory that a false pretext was used by Rumbo in acquiring possession of the animal, and that he at the very time of its acquisition entertained a fraudulent intent to convert it to his own use. He had legal authority *Page 286 to take the horse from Hill County to Cooke County where he was to use the horse in carrying on business for the owner's benefit. He passed through Ellis County on his way to Cooke County and the holding in Rumbo's case was that he was entitled to prove by witnesses in Ellis County that he made statements to them in line with the good faith of his possession of the horse and the purpose of his journey to Cooke County as tending to show that if he later converted the horse he entertained no such intent when it came into his possession or when he was in Ellis County with it on his way to Cooke County. In the present case any issue of false pretext — independent of theft by conversion which has passed out of the case — arises from the theory that the owner gave his implied consent for appellant to use the car for twenty minutes; that time had long expired before appellant made the statement exclusion of which is complained of; such statement could throw no legitimate light on appellant's use of the car during the twenty minutes; his right of possession of the car was not challenged by his father; appellant volunteered the statement which he wished to prove. It appears to be a purely self-serving declaration under the present status of the case which is ruled by the principle discussed in Seebold's case, 89 Tex.Crim. R., 232 S.W. 328, and the authorities therein referred to. It occurs to us that any other rule would permit one to build a defense to a charge of theft by his voluntary self-serving statements regarding the stolen property in the absence of a first challenge to his right of possession.
Appellant also complains that the court should not have submitted the issue of theft by false pretext, on the ground that the evidence raised no such issue. It is true the owner testified that he refused his consent for use of the car for even twenty minutes, but the fact that appellant drove the car away practically in the presence of the owner who then took no steps to apprehend appellant, and made no complaint to the officers regarding the taking of his car until the next morning, together with the relations between the parties was persuasive that the owner's refusal was not as positive as claimed by him; this led us to the conclusion expressed in the original opinion that under the very peculiar circumstances of this case implied consent to the use of the car for twenty minutes was inferable, and therefore the court was not without grounds to submit the issue objected to. The general principle involved may be found stated as follows in Segal v. State,98 Tex. Crim. 485, 265 S.W. 911:
"One who with a preconceived design to fraudulently deprive the owner of personal property, obtains possession of it and makes use *Page 287 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 the possession of his property. This we understand to be a general rule often applied in our own and other jurisdictions."
The motion for rehearing is overruled.
Overruled.