Appellant was convicted in the county court at law of Tarrant county of misdemeanor embezzlement, and his punishment fixed at two years in the county jail and a fine of $200.00.
There were three counts in the indictment, one charging theft in the ordinary form, one charging theft by bailee, and the third charging embezzlement. Only the third count was submitted by the learned trial judge. Two special charges were requested each of which was given. There are three bills of exception. The State contends that we can not consider said bills because filed too late. The contention is not supported. The trial term of the court below ended on January 5, 1924. In his order overruling the motion for new trial made on Jan. 3 the court granted 30 days in which to file bills of exception. On the 3rd of February the court granted an extension order, extending the time 60 days in which to file such bills of exception. The State contends that the 30-day period first granted had expired before February 3rd, and hence the trial court was without power on said last mentioned date to make an order extending the time. This would be true if the term of the trial court extended more than eight weeks but it did not. Art. 845, Vernon's C. C. P. provides that in the absence of any order at all parties to criminal cases shall have 30 days after adjournment of the court in which to file statements of fact and bills of exception, in case the term of court does not extend more than eight weeks. The term of the trial court ending January 5, 1924, and the extending order being made on February 3rd following, would be within the 30 days allowed by said statute. The bills were filed March 18th, and were in time.
The complaint in the first bill of exceptions is that witness Smith, owner of the alleged embezzled money, was permitted to testify that appellant told him on the night of the alleged embezzlement that he had arrested five other couples that night. In our opinion the testimony was admissible. The State's theory of the case was that appellant, pretending to be an officer, arrested Smith and his companions for parking their car by the roadside at night, and that appellant obtained $38.40 in money from Smith upon his promise and agreement to take said money and with it pay a fine and the costs which he said would be adjudged against Smith upon appellant entering a plea of guilty for Smith to a criminal charge based on what Smith was doing at the time. The testimony objected to *Page 443 would appear to be a part of the representations used by appellant to induce Smith to turn over the money to him.
It is urged in the second bill of exceptions that the trial court erred in letting in a conversation testified to by witness Smith as having been had with appellant in regard to returning the money, which conversation was objected to upon the ground that it occurred subsequent to the commission of the alleged offense. We are unable to see the validity of the objection. If appellant came to Smith after having obtained from him the money, and probably after charges had been made, and had a conversation with him in regard to returning the money, this might be very material evidence.
The third bill of exceptions was taken to a paragraph in the charge of the court wherein the court said:
"Gentlemen: You are instructed that an agent is one who undertakes to transact some business, or to manage some affair for another, by the authority, and on account of the latter."
We find ourselves unable to uphold this contention. In Corpus Juris, Vol. 2, under the head of "Agency" on page 420, appears the following:
"An agent is defined to be one who acts for or in place of another by authority from him; one who undertakes to transact some business or manage some affair for another by authority and on account of the latter."
This appears to be in harmony with the instruction given by the trial judge.
Appellant has filed a brief in which he urges that he could not be guilty of the offense of embezzlement under the evidence in this case. He seems to insist that at most the question involved would be one of bailment. The relation of bailee as involved in our statute on theft by bailee is constituted where one obtains the property of another with the intent to use it for his own benefit, and then to return it. As we understand the facts in this case, it was not contemplated, if the State's theory be true, that the money should ever be returned to witness Smith. Appellant having arrested Smith in his pretended character as an officer, then entered into an agreement with him that he would act for Smith in taking the money of the latter and delivering it to the proper authorities in payment of a fine and costs which they would assess against Smith, upon complaint being made against him. We find nothing in Grice v. State, 225 S.W. Rep. 172, supporting any issue properly raised by the facts in this case. The money delivered to appellant was unquestionably the money of Smith. Appellant was undertaking as Smith's agent to deliver it to the proper authorities in payment of a fine which he informed Smith would be assessed against him. Appellant was not a judge or a sheriff and had no power to then assess or collect a fine. The fact that appellant was undertaking to do this *Page 444 ostensibly without compensation would not alter the fact of his agency.
Not being able to agree with any of the propositions advanced, the judgment will be affirmed.
Affirmed.
ON MOTION FOR REHEARING.