This conviction is under an indictment: charging in the usual form the theft of two horses. The evidence shows that the defendant obtained possession of the horses-with the consent of the owner under a contract of hiring. In his charge to the jury the trial judge explained and submitted theft by means of false pretext, as defined by article 727 of the Penal Code, and also theft as defined by the act of March 8,1887 (Willson’s Crim. Stats., sec. 1292); that is, fraudulent conversion of property without the consent of the owner, where said property has been obtained from the owner by virtue of a contract *101■of bailment. These charges were excepted to at the time of the trial by the defendant.
With respect to the charge e*xplaining theft by means of false pretext, it was warranted by the evidence, and it is well settled that under an indictment charging theft in the usual form a conviction may be had for theft by means of false pretext. (Willson’s Crim. Stats., sec. 1263.) But the charge given by the court, while correct as far as it goes, falls short of the whole law upon the issue. It does not directly and explicitly instruct that the fraudulent intent on the part of the defendant must have existed at the very time he obtained possession of the property, and that no subsequent fraudulent intent would constitute theft. (Will-son’s Crim. Stats., sec. 1209.) Special instructions supplying this deficiency in the charge were requested by the defendant, and the court erred in refusing to give them.
With respect to the charge explaining the'theft defined by the act of March 8, 1887, supra, it was also warranted by the evidence. It is contended, however, by counsel for defendant that under the indictment a conviction can not be had for this species of theft, and that therefore it was error to give such charge. We are of the opinion that this position is a sound one. This species of theft differs essentially from theft in general, and from theft by means of false pretext. In this offense the possession of the property is obtained lawfully, by virtue of a contract, with or without a fraudulent intent on the part of the defendant at the time of obtaining the same, The fraudulent intent required to constitute this offense relates to and must concur with the act of conversion, and need not exist at the time of obtaining possession of the property. It is the fraudulent conversion and not the fraudulent taking, that forms the gist of this offense. Theft in general and theft by false pretext are not constituted unless the fraudulent intent exists at the very time of the taking. This offense is as essentially different from theft in general and theft by false pretext as is the offense of theft from the person, a conviction for which last named offense can not be maintained under an indictment charging theft in the usual form. (Willson’s Crim. Stats., secs. 1264, 1312.)
It has been held by a majority of this court that, under an indictment charging theft in the usual form, a conviction may be had for the offense defined by article 749 of the Penal Code, ■of “wilfully taking into possession and driving, etc.-, live stock,” etc. These decisions, however, are grounded upon the fact that *102to constitute that offense there must be, as in theft in general, a. fraudulent taking of the property, and that the constituent elements of the offense are the same as theft in general. (Willson’s Crim. Stats., sec. 1263.) It has also been held that, under such an indictment, a conviction is maintainable for the misdemeanor defined by article 767 of the Penal Code. (Guest v. The State, 24 Texas Ct. App., 235, and cases there cited.) These decisions are based upon the ground that the offense defined by article 767 is not clearly distinguishable from ordinary theft. The decisions above referred to, with reference to the offenses defined by articles 749 and 767, are inapplicable, in our opinion, to the offense defined by the act of March 8, 1887, supra, for the reason before stated, that said last named offense is essentially different in its elements from the offense of ordinary theft. Nor does said offense come within the provision of subdivision 6 of article 714, Code of Criminal Procedure, because in said offense the acquisition of the property is not necessarily unlawful, but may be lawful, and it is only an unlawful acquisition of property that is embraced in said provision. This new offense is nothing more nor less than embezzlement, named and declared to be theft, and to warrant a conviction for it the indictment must charge specifically the facts constituting it—that is, the facts of the bailment and the fraudulent conversion of the property without the consent of the owner, etc. ° We hold that the court erred in instructing the jury that they inight convict- the defendant under the said new statute.
Opinion delivered February 25, 1888.Because of the errors in the charge of the court which we have discussed, the judgment is reversed and the cause is remanded.
Reversed and remanded.