The appellant was tried and convicted of the offense of theft over the value of $50.00 and his punishment was assessed at confinement in the state penitentiary for a term of two years.
The only ground upon which appellant relies for a reversal of this case is that the testimony is insufficient to warrant and sustain the conviction.
The record shows that Guy Douthit, who owned and operated a cotton gin at Lueders, in Jones County, had employed T. C. Newcomb to haul cotton seed from a bin at his gin to Stamford, Texas; that on the 21st day of December, 1934, he (Douthit) instructed Newcomb to "clean the bin" before Christmas, as he did not want to carry any of the seed over Christmas. Newcomb and the appellant hauled two loads during the day and loaded the third load after dark, which they hauled to Hamlin and sold it to the Hamlin Cotton Oil Mill for $78.10, under the assumed name of A. L. Simpson.
Mr. Douthit testified that appellant had worked for him off and on for some ten or twelve years but had not hauled any seed for him during the fall of 1934; that he (Douthit) *Page 38 had employed T. C. Newcomb to haul the seed; that after appellant and Newcomb were arrested at Hamlin, they telephoned for him to come over; that appellant admitted that he took the seed. Douthit further testified:
"What I started to say this morning, when I was asked if the defendant had permission to take that particular load of seed, was this: I did not tell him to take that specific load of seed, but Buck (meaning appellant) had been working for me, as I said, for several years, and anything that he might do — I have told my hands — not him specially — and possibly I told this defendant that anything that he might take around that gin and tell me later — I had confidence in him, I would say — not the other hands — would be all right with me. If he took a load of seed out there, and later on, in thirty or sixty days, had adjusted it with me, that would have been agreeable to me. As to my having no objection to him going there and getting that particular load, I will say if he had settled with me later, it would be all right."
This case seems to have been tried and was submitted by the court to the jury upon the theory that the cotton seed was taken by the appellant and Newcomb without the consent of the owner as in an ordinary case of theft, but the proof shows that the owner had employed Newcomb to haul the seed to Stamford. Appellant was assisting Newcomb in the work with Mr. Douthit's consent and acquiescence. Therefore the court should have drawn his charge in accord with Article 1413, P. C., and the opinions in the case of Guest v. State, 24 Tex. App., 235, and Warren v. State, 106 S.W. 382.
It is obvious that Newcomb was employed by Douthit to haul the seed out of the bin. Therefore Newcomb had the owner's authority to take possession and haul it; and the appellant, who was assisting Newcomb with the owner's consent, also had that authority, if not expressly, then by acquiescence. Therefore, in order to sustain a conviction under the indictment the State was required to prove beyond a reasonable doubt that appellant wrongfully took possession of the seed, because if the accused came into possession of the seed by lawful means, the subsequent appropriation thereof would not be theft. If, however, the original taking was lawful but the accused at the time intended to deprive the owner of the value thereof and to appropriate it to his own use and benefit and did so appropriate it, the offense would be theft under Article 1413, P. C.
In this case, it is not contended that any false pretext was *Page 39 resorted to by the accused in obtaining possession of the seed. Hence, to convict, it must be shown that the accused, when he took possession of the seed, intended to deprive the owner of the value of the same, the proof of which rested upon the State, and it was incumbent upon the State to establish it beyond a reasonable doubt. Proof of conversion alone is not necessarily sufficient to establish the fact that he (appellant) intended to convert the property at the time he took possession thereof. There must be other proof. See Hernandez v. State, 20 Tex. App., 151; Cox v. State, 28 Tex. App., 92; Stokeley v. State, 24 Tex. App., 509; Lopez v. State, 37 Tex.Crim. Rep.; Gosler v. State, 56 S.W. 51; Downs v. State, 81 Tex.Crim. Rep..
We believe that under the foregoing authorities the appellant's contention must be sustained. We also think that the testimony of Mr. Douthit, the owner of the seed, is so unsatisfactory that we would be unwilling to permit the judgment of conviction to stand. It is therefore ordered that the judgment of the trial court be reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.