Appellant insists that there is no proof herein of any contract of hiring, borrowing or other bailment, *Page 66 and that for this reason the case must fall. If the premise be true, the conclusion of appellant must also be. What is "other bailment"? We have often agreed on a sufficient definition. Same is that "Personal property whose title is to remain in the owner, is delivered to another for some purpose, with the understanding, express or implied, that the acceptance by such other is for the carrying out of such purpose." Fulcher v. State, 32 Tex.Crim. Rep.; Malz v. State, 36 Tex. Crim. 447; Northcutt v. State, 60 Tex.Crim. Rep.; Johnson v. State, 71 Tex.Crim. Rep.; Lee v. State, 81 Tex. Crim. 117; Moon v. State, 88 Tex.Crim. Rep.. How did appellant come into possession of $260 belonging to prosecuting witness? Let the prosecuting witness speak: "The last time I saw that $260 I handed it to her;" "She told me * * * she would bury this money in this box and I would take it home;" "I turned it over to her for the purpose of burying it in that box and pot, and I shall keep it for thirty days and shall return that pot to her house, and she shall open that pot and give me that $260;" "She proposed to bury the money in that pot and I was supposed to keep the pot;" "I gave her this $260 to be buried;" "She took possession of the money;" "She was to put that money in the pot to cure me."
As far as we are able to see, this supports the presence in this case of every element of a bailment as above set out. The money was delivered to appellant, the bailee, for the purpose of being by her buried in a flower pot for the curing of the bailor, to whom the pot with the money in it was to be delivered by appellant after she had buried same therein. The length of time the accused was to have possession of the property by virtue of such bailment, cuts no figure. She had it, for the benefit of the other woman, and kept it.
Appellant insists, however, that she had in her mind all the time the fraudulent purpose to deceive the prosecuting witness, and that her representations were false when made, and that therefore, though the facts overwhelmingly show her to be a thief, she is such by virtue of the provisions of Art. 1413 P. C., and therefore should not be held to be a thief by virtue of the provisions of Art. 1429 P. C. On this point we quote with approval the language of Judge Davidson in Lopez v. State,37 Tex. Crim. 650:
"The act of the Legislature making it theft to convert property acquired by a contract of borrowing, hiring or bailment, was passed to meet just such a case as the above. Under this last act it does not matter whether or not the party intended *Page 67 to convert the property at the time he acquired possession; it does not matter whether or not he resorted to any false pretenses or representations; and if he acquired possession by borrowing, hiring, or as a bailee, and did convert, he is guilty, under Art. 877, Penal Code, 1895."
As stated in the original opinion, we are not in accord with some expressions in Pickrell v. State, 60 Tex.Crim. Rep., which apparently are at variance with the views expressed in the quotation above. In the last named case the court was discussing a charge held incorrect, and the things said on the issue now before us were not necessary to the decision. Appellant also cites Price v. State, 91 S.W. 571, as holding in line with Pickrell v. State, supra. What was said in that case, as in the Pickrell case, was dicta. The court was discussing the sufficiency of an indictment attempting to charge theft by false pretext in a certain county, which indictment was held bad because it did not charge in so many words the appropriation of the alleged stolen property, that being a necessary allegation where theft is charged under the provisions of Art. 1413 P. C. We do not believe those expressions in said opinion in line with what was said in the Pickrell case to be sound, and the Price case to that extent is also overruled. In our belief the enactment of these statutes, with possible overlapping provisions, were intended by the Legislature to make punishable those who wronged their neighbors and society, and there was no intention to afford such persons opportunity of escaping punishment by the plea that the accused, though guilty, could not be held liable in a particular case because forsooth he claims the prosecution should have been under some other statute closely related, but slightly different in verbiage.
Being unable to agree with any of the contentions made by appellant, the motion for rehearing is overruled.
Overruled.