My brethren have reached the conclusion that the indictment in the present case is sufficient. I am aware that they are supported by many *Page 355 authorities from other jurisdictions and by some cases from our own court which are cited in the majority opinion, which at least are persuasive in upholding the indictment. I entertain such serious doubts in regard to the matter that I think it not inappropriate that I express my views regarding it. Our statute, Art. 1429, P. C., provides:
"Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or otherbailment who shall without the consent of the owner, fraudulently convert such property to his own use * * * shall be punished as for theft of like property."
We have held that the term "other bailment" covers every class of bailment known to the law except that of hiring or borrowing, which is specifically mentioned. There are some six general classifications of bailments with numerous subheads under each classification. If our statute, instead of attempting to cover all others than hiring or borrowing, by the general term "other bailments" had specified each one of them by name, an indictment which alleged under that kind of definition that a party was simply in possession of the property by a contract of bailment, or alleged that he was in possession of the property under a contract which brought it within one of the numerous species of bailments named by the statute without naming the kind, such an indictment unquestionably would have been held bad pleading. I have not been able to escape the conclusion that by the use of the general term "other bailment" in our statute, the meaning is exactly the same as if each character of bailment had been named by the law-makers, and that simply alleging in an indictment that a party is in possession of property under a contract of bailment does not comply with our constitutional provision which requires that a party by a charge against him be advised of the offense he is alleged to have committed. To say the least of it, much the better pleading would suggest that the character of bailment should be named, and if necessary, such facts averred as shall advise an accused of the character of the contract under which it is claimed he held the property.
ON MOTION FOR REHEARING.