Appellant was convicted of a fraudulent conversion of money paid to him by mistake, and his punishment assessed at two years in the penitentiary.
The only question in the case is whether the offense charged against appellant is within the purview of article 742a of the Penal Code.
In this case the cashier of the First National Bank of Midland County, by mistake, paid to appellant $500 more than his check on that bank called for, which was converted by appellant to his own use.
Article 742a declares, that any person having possession of personal property of another by virtue of a contract of hiring or borrowing or other bailment, who shall, without consent of the owner, fraudulently convert such property to his own use, with the intent to deprive the owner of the value of the same, shall be guilty of theft.
The indictment contained two counts; one for theft of money, which was dismissed; the other count alleges, that appellant did then and there obtain and acquire from W.E. Connell the possession and custody of $500, current money of the United States, the property of said Connell, by virtue of a contract of bailment, in this, that the said W.E. Connell did then and there pay said money aforesaid to the said W.F. Fulcher by mistake, who, while in possession of said money by virtue of said bailment, did then and there fraudulently convert and appropriate said money to his own use, with intent, etc.
Did the payment of this money by mistake to appellant make him a bailee?
A bailment may be defined as a delivery of personal property to another for some purpose, upon a contract, expressed or implied, that such purpose shall be carried out. 2 Black. Com., 451; Jones on Bail., 117; Story on Bail., sec. 2.
Money paid by mistake, as in the case at bar, can not be held, under the above definition, to be a bailment. There was no intent on the part of the cashier, Connell, to deliver the money, to-wit, the said $500, to appellant for any purpose.
If, however, at the time appellant received the property, he formed the criminal design to appropriate it to his own use, and did so appropriate it, it would be theft. Article 727, Penal Code.
In Rex v. Middleton, 2 Cow. C. R., 38, where A gives a cabman a sovereign by mistake, thinking it was a shilling, and it was kept by the cab-man, it was held by the court, eight judges concurring, to be larceny. Whart. Crim. Ev., 915.
In this case the State dismissed the count for theft and relied upon the count of conversion by a bailee. *Page 625
We think the court erred in permitting a conviction under the bailment count, under article 742a. This was error.
The judgment is reversed and the cause remanded.
Reversed and remanded.
Judges all present and concurring.