ON MOTION FOR REHEARING.
GRAVES, Judge.Appellant insists that his action, if any offense, does not consist of that of a theft by bailee, and therefore his conviction therefor was unauthorized, that being the only count submitted to the jury.
The statute, (Art. 1429, P. C.), relative to theft or conversion by bailee reads as follows:
“Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished as for theft of like property.”
It is contended that the offense of theft by bailee contemplates an obligation upon the part of the bailee to return the things bailed to him in practically every instance with a few exceptions, which exceptions arise because of the impossibility of a, segregation from others of like character such as money, grain or other like substances. We think this doctrine overlooks the portion of the statute that reads, “or other bailment”. We are not in accord with the doctrine that a contract of bailment is limited to that of hiring or borrowing alone, and think that a further classification arises and is called for by the term “or other bailment”. The other bailment in this instance is, “I give you $1,512.00; with this money you purchase a certain kind of car and return such car to me.” By means thereof, appellant obtained the money with Cuscurida’s consent and was . bound by the contract by means of which he obtained such ■ consent and such money. Appellant was also to receive a certain amount of money for his services to be rendered upon the delivery of the car at Waco.
We think that the case of Bell v. State, 132 Tex. Cr. R. 81, *430104 S. W. (2d) 511, to be in point. In that case the accused was delivered a certain sum of money to invest in stocks on the market. He failed to so invest same, and it was held that the money thus intrusted to him, not having been invested by him as per contract but instead appropriated to his own use and benefit, such facts constituted theft by bailee.
Again, in Lee v. State, 81 Tex. Cr. R. 117, 193 S. W. 313, the holding is to the same effect, wherein it is stated that a bailment has been defined as “a delivery of a thing in trust for some special object or purpose and upon a contract expressed or implied to conform to the object or purpose of the trust.” (Story on Bailment, 9th Ed., page 5.)
We think the contract herein shown comes under the classification of a bailment, and that the testimony further shows that appellant violated this trust by appropriating this money to his own use and fleeing to the State of California, and that he was properly convicted of theft by bailee.
The motion for rehearing is overruled.