The State insists that this is not a case on circumstantial evidence for the reason, as urged, that the only issue dependent on that character of testimony is the intent of the accused in the premises. A number of authorities are cited and we have no doubt of the correctness of the proposition that when the facts constituting the crime are all established by direct testimony, except the matter of intent when a proper issue, that the case would not be one dependent on circumstantial evidence. The trouble is that we are unable to apply the authorities to this particular case.
Appellant was the agent of a wholesale concern whose goods had been shipped to the territory assigned to him and were there in his possession, care, control and management. It was his business to sell such goods. He did in fact sell 100 sacks of sugar and it was delivered to the purchaser who had paid to appellant a part of the purchase price. The rule of the company employing appellant, that all sales must be referred to them for ratification before delivery, had been violated by appellant in other instances occurring before the transaction here involved, and he had not been discharged. The defensive theory was that he had not reported this particular sale because technically in violation of his instructions, but that he was collecting and holding the money resulting from such sale until the goods sold should have been paid for, when he expected to remit to the company. We are at loss to know what particular act of appellant appears in the record, proven by positive testimony, which could be held to establish appropriation or conversion so as that only the issue of intent might be deemed necessary of solution by circumstantial evidence. We confess our inability to answer the question. Could such act be said to arise from appellant's negotiation to sell Mr. Brand the sugar? Was it his hiring of the truckman to deliver the sugar to Brand? Was it appellant's failure to report the sale? Could it be that his collection of installment payments on the sugar was such act? If the sale was in fact to the merchant Brand in good faith, and if the delivery was in *Page 304 line therewith, and if the contract was that Brand was not to pay for all of the sugar until half of it was sold, and if the payments made, during the thirteen days intervening between the delivery of the sugar and the repudiation by appellant's employer, were not remitted to the employer by appellant, — if any of these could be held to amount to the act constituting the crime, there might be something in the State's contention, but, as we view the matter, no witness swore to any act or fact which would establish the appropriation or conversion of the sugar. Each act proven against appellant might be considered by the jury as sufficient to form a link in a chain of circumstances leading to the conclusion of guilt, or, on the contrary, they might repudiate the inference arising from said circumstances, but in our opinion there is no doubt but that the case is one of circumstantial evidence.
The motion for rehearing will be overruled.
Overruled.