The offense is embezzlement; the punishment, confinement in the penitentiary for ten years.
Jes Rasmussen had $4,200 on deposit in the First State Bank at Dundee. The bank was closed and in process of liquidation. However, practically enough money was on hand to pay all of the depositors. Mr. Rasmussen and Mr. Lyles, who were the largest depositors, had agreed to defer the full collection of their claims in order that the bank might pay the remainder of the depositors. The full amount due Mr. Rasmussen would have eventually been paid. After the bank had been closed appellant went to Mr. Rasmussen with the request that he buy some Postal Bonds. Mr. Rasmussen advised him that his money was in the bank and that it could not at that time be obtained. Finally he delivered to appellant an assignment of his deposit of $4,200 in the closed bank. He testified: "I gave this assignment to Mr. New (appellant) in order to buy $4,200 worth of Postal Bonds after he had explained to me that these bonds were backed by the Government and were the safest thing in the world. * * * I never got the bonds from Mr. New. This transaction was made about April 26, 1933. He wrote me a letter and stated he received the money and was going to send the bonds." On cross-examination Mr. Rasmussen testified that he assigned the deposit to appellant in order that he might buy the bonds for him; that appellant did not have the bonds with him at the time, but stated to him that he would buy them and send them to him; that appellant said he would like to get the money immediately as he needed some two or three hundred dollars to close a trade in Wichita Falls *Page 32 which would pay him a commission; that appellant did not tell him that he was going to sell the assignment. We quote further from the testimony of the witness on cross-examination: "At the time I made the trade with Mr. New it was with the understanding that he was going to give me bonds in exchange, as I was giving up all claim to the debt the bank owed me. Just wiping out what the bank owed me as far as I was concerned and parting with my title in the matter. * * * I was not looking to my bank account any more because I traded that off for the bonds." After securing the assignment from Mr. Rasmussen appellant transferred it to Alex. A. Allbright for ten thousand dollars worth of building and loan stock. Mr. Allbright secured $1,300 from the account Mr. Rasmussen had after the assignment was transferred to him and apparently continued to participate in the dividends that were paid on said account. Appellant took the building and loan bonds to Wichita Falls and sold them for approximately $3,000. Mr. Rasmussen received nothing from his assignment, as appellant at no time purchased any Postal Bonds for him; but, on the contrary, according to the version of the State, appropriated the money he had received.
Appellant did not testify in his own behalf, and introduced no witnesses.
The indictment charged the embezzlement of $4,200 in money. It is clear from the record that no money belonging to Jes Rasmussen came into appellant's possession by virtue of his agency. Appellant received from Mr. Rasmussen the assignment which he traded for building and loan stock. This stock was thereafter taken to Wichita Falls and sold. From the State's standpoint, appellant embezzled the assignment and not the money. An allegation of embezzlement or misapplication of money is not supported by proof of the embezzlement or misapplication of an assignment. Miller v. State, 53 S.W.2d 790; Meyers v. State, 8 S.W.2d 125.
We think the testimony of Mr. Rasmussen raised an issue as to whether appellant was Mr. Rasmussen's agent. If Mr. Rasmussen did not place the assignment in the hands of appellant as his agent the fiduciary relation of principal and agent was not created. Clark v. State, 135 S.W. 575. Appellant's exception to the charge for its failure to submit affirmatively this issue should have been responded to.
In view of the fact that another indictment must be returned if appellant is to be tried again, we desire to say that the facts apparently bring the case within the purview of art. *Page 33 1413, P. C., relating to theft. Two counts could properly have been embraced in the indictment. As presented, we have some doubt as to the facts bringing the transaction within the purview of the statute denouncing embezzlement.
The judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING