Appellant was assessed a penalty of five years in the penitentiary under an indictment charging a felony theft.
As returned by the grand jury, the indictment alleges the theft of seventeen hundred dollars in money, the property of Alfred Craver. Frank E. Morley was jointly indicted but appellant was separately tried. *Page 835
The sole contention before this court now is that the facts introduced show embezzlement rather than theft. The pertinent facts show that Morley was employed by a company of which Craver was the manager. His duties were general office work, assisting Craver and having charge of the property in Craver's absence. He worked on the books and took the money to the bank as directed, but was accompanied by some other person in doing so. The manager of the business testified in detail as to Morley's duties and it seems perfectly clear that he had no fiduciary relationship in the matter, but only acted as a servant under the direction of his superior, both while his superior was present and while he was absent.
Morley lived in a trailer house near one in which this appellant lived. Some days prior to the alleged theft Morley described his situation in which he frequently handled large sums of money and they planned to burglarize the place and get the money, to be divided between them later. On a Saturday night they went into the place, took the money out of the safe and planned to carry it away and to break the safe up to indicate that the money had been taken by a burglar. This appellant, however, concluded that he did not have tools with which to make the job look to be a complete one and they changed their plan, but took the money out that night. The following day they returned to the place and appellant bound Morley with scotch tape and left him, indicating that he had been robbed. What happened immediately after that is not disclosed by the record. Some days later this appellant appeared in an automobile sales place with a wrecked car which he had previously bought from the same concern. He reported the wreck and desired to trade automobiles. An agreement was entered into and he told them that he had been saving quarters, which were in the gasoline tank, and he would pay for the car with them. The money was retrieved from the tank, produced and counted, or was in the process of being counted, when an officer arrived and gathered information which led to the arrest of appellant.
Confronted with this situation, he signed a written confession which he did not attempt to repudiate. In this he involved Morley and it led to the return of the indictment.
Quite an ingenious argument and brief have been presented by the appellant on appeal. The question raised was discussed in oral argument and, upon its face, presents a plausible question. We have concluded, however, that Morley was not acting within the scope of his employment by entering the safe and taking possession of the money, that he did so with an evil intent previously engendered and he cannot be classed as one having possession of money lawfully and thereafter converting the same to his own use. In this the elements of embezzlement are not met. See Zysman v. State, 42 Tex.Crim. R.,60 S.W. 669, 670, from which we quote: 'Appellant insists that the prosecution, if authorized at all by the evidence, would only be for embezzlement. We do not agree with this. The evidence shows that appellant was the agent, employe, or clerk of the prosecutor, having control of his pawnshop part of the time during the absence of the prosecuting witness, but all the while under the direction and supervision of the prosecutor, and that if he took such property, as is alleged in the indictment, from said house, without the consent of the prosecutor, he would be guilty of theft, and not of embezzlement, and hence the indictment was properly drawn for theft."
The question is discussed in Gideon v. State, 119 Tex.Crim. 612,44 S.W.2d 687, under the situation described as follows: 'Under these facts we think the contention of appellant unsound, and that the court properly refused his special charge. The owner of the property was temporarily away, but the property was left in the house in the custody of the servant, with no right of disposition of any of same, and no duty toward the property save to obey the directions of the owner and keep said property clean and in order. Mr. Graves testified: 'As far as the property is concerned, the maid had no authority to dispose of it or anything like that.' We think the recent *Page 836 case of Burges v. State, 114 Tex.Crim. R., 26 S.W.2d 229, 230, in point and decisive.'
The question thus presented has been before this court many times and in many and varied situations. It is frequently a difficult one but we think the facts of the instant case, which are without dispute, elearly describe a case in which an indictment for theft is proper.
The judgment of the trial court is affirmed.
On Motion for Rehearing