— Theft by bailee is the offense; penalty assessed at confinement in the penitentiary for a period of four years.
From the brief of counsel for the State we take the following facts:
“Under the evidence presented in this case it appears that appellant W. R. Bell was on December 18, 1985, in the employ of H. 0. Bedford & Company; that he was in charge of the H. Ó. Bedford & Company office in Big Spring, Texas, at that time and for sometime thereafter. On December 13, 1935, Alvie E. Dolen, and her husband, Isaac S. Dolen, became acquainted with the appellant, W. R. Bell, at the office of H. 0. Bedford & Company and bought some stock from him as agent for H. 0. Bedford & Company. On December 23, 1935, Mrs. Dolen and her husband again went to the office of H. O. Bed-ford & Company at Big Spring and sold the stock they had bought on December 13th. This transaction was made through the appellant as agent for said company. On that same day (December 23, 1935) Mrs. Alvie E. Dolen delivered to appellant, W. R. Bell, her check in the sum of $2347.50 and received the following receipt therefor:
“ ‘Big Spring, Texas,
“ ‘December 23, 1935.
“ ‘Received of Mrs. Alvie E. Dolen, $2347.50 for the purpose of speculating in the New York Stock and Cotton Ex*83change and Chicago Grain Exchanges. At the option and judgment of the undersigned. All buying and selling orders to be executed by and at the order of said undersigned.
“ ‘Commission of 10% of profits only to be retained by the undersigned.
“‘(Signed) W. R. Bell.’
“The only agreement regarding the purpose for which appellant was to use the money in question or regarding the question of sharing any profit or loss was contained in the above receipt. The reason appellant gave Mrs. Dolen the above type of receipt instead of the regular H. 0. Bedford & Company receipt which he had given her when the purchase of stock was made on December 13th was explained by Mrs. Dolen in the following manner:
“ ‘We went in there one afternoon to buy stock and the next morning it opened high and couldn’t buy it as he couldn’t reach us and he said if we would turn the money over to him he would buy for us so he wouldn’t have to get in touch with us, and I had him give me this receipt so he could handle these trades himself without having to get in touch with me.’
“Mrs. Dolen was to bear the losses, if there were any losses, although appellant represented to her that there would be no losses. And it was agreed that Mrs. Dolen could have the stock sold and get her money at any time she desired.
“On December 24, 1935, the appellant deposited the check of $2347.50, together with another check of like amount signed by -Isaac S. Dolen, in The First National Bank in Big Spring; Texas, to his own account. Before making this deposit W. R. Bell had $1.00 to his account in the bank. No other deposits were made by W. R. Bell after that time until the account was closed. On the same day (December 24, 1933) appellant cashed a check on this account in the sum of $1000.00. On December 28, 1935, he cashed another check for the sum of $3500.00. The teller of said bank swore that he paid to Bell in person this $3500.00 in cash. On January 2, 1936, appellant cashed another check for the sum of $195.00, leaving a balance to his account at that time of $1.00. On January 24, 1936, a check for $1.00 was cashed which closed the appellant’s account.
“After talking with appellant several times about an accounting for the money which had been placed in his possession, Mrs. Alvie E. Dolen and her husband, on January 23, 1936, went to the office of H. O. Bedford & Company in Big Spring, Texas, and made a demand upon appellant for the money or the stock. This occurred in the afternoon at about *842:30 o’clock. Appellant represented to them that the stock exchange was closed tor the day and that if they would come back the next morning by 9:00 o’clock he would have it ready for them. He also represented that there was a profit on the transaction. On the next morning at 9:00 o’clock Mrs. Dolen and her husband were at the office of H. 0. Bedford & Company as directed but appellant was gone and they were unable to see him although they stayed in town trying to find him until about 5:30 o’clock in the afternoon. Efforts were made to locate the appellant at various times thereafter at the office of H. 0. Bedford & Company at Big Spring, Texas, by inquiring at his wife’s residence in Big Spring, by searching for him at McCamey, Texas, and by telephone call to the office of H. 0. Bedford at El Paso, Texas, all of which were unsuccessful. On February 17, 1936, the appellant was found and arrested in a room at the Cactus Hotel in San Angelo, Texas, registered as Russell Bell of Abilene, Texas. He was locked in his room and refused to answer knocks at the door or telephone calls. The room was darkened and the main light switch at the door had been changed so it could not be turned on. The telephone was also muffled.”
The indictment alleges in substance that the appellant was in possession of the money of Mrs. Dolen by virtue of a contract of bailment. Appellant presented a motion to quash the indictment upon the ground that it failed to allege the kind or character of the bailment or contract. In Collins v. State, 92 Texas Crim. Rep., 388, which was a conviction for embezzlement, it was held that the description of the accused in the indictment as a bailee was sufficient. See, also, Dowdy v. State, 64 S. W., 253; Goodwyn v. State, 64 S. W., 251: We see no reason for a more extended statement of the nature and character of the bailment in an indictment charging theft by bailee than in one alleging the offense of embezzlement. It being sufficient under the decisions mentioned to charge that the accused received the property as bailee, it would seem to follow that in charging theft by bailee the averment that the accused was in possession of the property under a contract of bailment is also sufficient.
Appellant sought to have the court submit to the jury the issue as to whether the contract between Mrs. Dolen and himself was one of partnership. We find nothing in the evidence raising such issue. We are constrained to hold that the case of Lee v. State, 81 Texas Crim. Rep., 117, in which the con*85tract was held to be a bailment for the mutual benefit of the bailor and bailee, controls.
We are also of the opinion that the holding in the Lee case, supra, would support the conclusion that the conviction in the present case for theft by bailee should be sustained. Here, as in the Lee case, the contract was for the mutual benefit of the bailor and bailee. The appellant was to receive compensation for his services.
Appellant excepted to the charge of the court for its failure to submit an instruction covering the law of circumstantial evidence. In support of his contention the appellant cites the case of Miller v. State, 225 S. W., 379. In that case, in order to establish the conversion of his employer’s money by Miller the State relied upon an audit which disclosed a shortage in Miller’s accounts. This, together with Miller’s flight, constituted the evidence relied upon by the State. In the present case, after placing the money in the bank to his own credit the appellant drew checks payable to himself and took the money into his actual possession. Under his contract with Mrs. Dolen the appellant was required to make an accounting upon demand. When called upon for an accounting he stated to Mrs. Dolen that he had invested the money in stocks and made a profit. Thus, according to his own admission, appellant had the money in his possession. He also stated to her that if she would call on the following morning he would make an accounting. When she sought him at the appointed time it was discovered that he had gone to San Angelo, where he was later arrested. He failed to return Mrs. Dolen’s money to her notwithstanding his declaration to the effect that he had invested the money and made a profit. We think the evidence in the present case is direct to the point that appellant converted the money in question.
From the opinion of Judge Davidson affirming the case of Steadham v. State, 40 Texas Crim. Rep., 43, we quote the concluding paragraph as follows:
“It is also insisted that the court should have charged the law applicable to a case of circumstantial evidence. As before stated, the fraudulent conversion is not a disputed fact, under the evidence, and therefore it was not necessary to charge the law on circumstantial evidence.”
Upon the record before us we are constrained to order an affirmance of the judgment of conviction, which is accordingly done.
Affirmed.
*86HAWKINS, Judge.— My views as to the sufficiency of the indictment have been expressed in Stein v. State, No. 18665 (this volume).