ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.The complaint and information under which appellant was convicted charged him with straight theft from Mickelson. We *437refer to our original opinion for the facts developed on the trial.
In his motion for rehearing appellant insists that the affirmance was improper under the State’s pleading because he asserts that the undisputed evidence shows that appellant was in the rightful possession of the property he is alleged to have stolen.
In making such contention we apprehend appellant has confused the term “possession” as used in the statute defining theft (Art. 1410 P. C., 1925) with mere custody, such as that of a" servant or employee.
„ Appellant was a porter in the hotel in the employ of Mickelson. It was appellant’s duty, among other things, to take the mail from the box in the hotel to the postoffice and there post it for the United States Mail. He was a servant of Mickelson, and his possession of the mail was not adverse to the possession of his master. His possession was not the legal possession referred to in said theft statute, but was mere custody. A servant’s temporary possession of property is mere custody, and is not such legal possession as will defeat a charge of theft from the owner, should the servant fraudulently appropriate the property. See Wharton’s Crim. Law, Vol. 2, Sec. 1197, page 1508, 12th Ed., Roeder v. State, 39 Tex. Cr. R. 199, 45 S. W. 570; Crook v. State, 39 Tex. Cr. R. 252, 45 S. W. 720; Livingston v. State, 38 Tex. Cr. R. 535, 43 S. W. 1008; Branch’s Ann. Tex. P. C., Sect. 2447, p. 1322.
Appellant’s motion for rehearing is overruled.