There are two counts in the indictment, the first charging embezzlement of an organ, and the second embezzlement of the proceeds of a sale of said organ. After the evidence was all in, the State elected to proceed upon the first count, and the conviction was had upon said first count, for the embezzlement of the organ. It appears from the evidence that the defendant, as agent for one Caylor, received the organ in question for sale. He was to sell said organ for fifty-seven dollars, of which amount twenty dollars was to be paid in cash, and the remainder was to be paid in notes of the purchaser, secured by a lien on the organ. Defendant sold the organ to one Earnhart, and received in payment, in money, forty-five dollars, and the balance of the purchase price was paid by Earnhart in boarding defendant’s wife. He never accounted to Caylor for the amount received for the organ from Earnhart. Caylor had the possession and control of the organ at the time the defendant received it, although the legal title thereto remained in the manufacturers, Estey & Camp.
Defendant excepted to the third paragraph of the court’s charge, which is as follows : “ If you believe from the evidence that the defendant received from the said Caylor the organ .in question, under an agreement that the defendant should act as the agent of the said Caylor in the sale of said organ, and that defendant should sell said organ, and pay over to and deliver to said Caylor a certain sum in money, or notes, that defendant should secure from the sale of said organ ; and you further believe that defendant sold said organ as his own property, and not as agent for said Caylor, and that at the time of said sale *698the defendant had the fraudulent intent to appropriate the proceeds of said sale to his own use, and that in pursuance of said intent the defendant afterwards appropriated the proceeds of said sale to his own use and benefit, without the consent of said Caylor, the defendant would, under such circumstances, be guilty of embezzling the organ. But, if you believe it was the intention of the defendant to act in good faith towards said Caylor, and carry out his alleged agreement, and that he, after said sale, conceived for the first time the intention to appropriate the proceeds of the sale, he would not be guilty of embezzling the organ.”
We do not think the exceptions to this paragraph of the charge are well grounded. As we understand the law, it clearly and distinctly states the correct rule, as announced in the decisions upon the subject. In Leonard v. The State, 7 Texas Court of Appeals, 417, this court uses the following language: “We are of the opinion that, notwithstanding appellant may have had authority to make a sale of the cotton alleged to have been embezzled, yet, if he sold the same with the formed intention to defraud the owner, and to convert it to his own use and benefit, he is as much guilty of embezzlement of the cotton as if he had no authority to make such sale. What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted. There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply a matter of evidence, and not pleading; and the appellant, in this case, was charged in the usual form, that he “ did embezzle, fraudulently misapply, and convert to his own use,” the particular property described. If he sold it with the honest purpose of delivering the proceeds to the owner, and, after such sale, conceived the fraudulent intention, he would not be guilty of embezzlement of the cotton at least. But, if the sale was simply a means to effectuate his fraudulent purpose to convert the property to his own use — in other words, to steal it — it is as much an act of conversion as if he had shipped it clandestinely to a foreign port, and there disposed of it.”
The case of Baker v. The State, 6 Texas Court of Appeals, 344, cited by cpunsel for defendant in support of exceptions to said paragraph of the charge, is not in point, the question therein decided being different, and the statute upon which said *699decision is based having been materially changed with respect to the question involved in said decision.
Opinion delivered January 26, 1887.We are of the opinion that said paragraph of the charge is not only correct in principle, but that it was applicable to and demanded by the evidence in the case, and that there is sufficient evidence to warrant the finding of the jury that at the time defendant sold the organ he entertained the fraudulent purpose of appropriating the proceeds of such sale to his own use. The question of his intent in making said sale—whether it was fraudulent or honest—was properly and clearly submitted to the jury.
There are some other objections made by defendant to the charge of the court, but we are of the opinion that the charge is, in all respects, sufficient and unobjectionable; and, such being the case, there was no error in refusing the special charges requested by the defendant.
There is no error in the conviction, and the judgment is affirmed.
Affirmed.