Appellant was convicted of the theft of $20 in United States currency. There were three counts, covering the question of ownership. His punishment was assessed at two years in the penitentiary, from which judgment he appeals to this court.
The appellant went into the store of one J.N. Brooker, in the town of Rogers, in Bell County, late in the evening, and passed upon his clerk, a boy of 15 years, a $20 Confederate bill, and received a $10 bill and two $5 greenback bills. The clerk discovered the mistake in a few minutes, and diligent search was at once instituted for defendant. But he had left town on obtaining the money. On being arrested next day in Milam County, he denied that he had ever been in Rogers. He was fully identified, and a $10 and a $5 bill and $3 in silver found on him.
Appellant claims that the clerk, Thomas, intended to part with both the title and possession of the money handed to him, and that he can not be convicted of theft, but of swindling only. Article 727 of the Penal Code declares, that if the taking of property, though originally lawful, was obtained by any false pretext, or with intent to deprive the owner of the value thereof, and appropriate the said property to the use and benefit of the taker, and the same is so appropriated, the offense of theft is complete. Article 790 defines swindling as "the acquisition of * * * money, * * * by means of some false pretense or fraudulent representation, *Page 112 with the intent to appropriate the same to the use of the party so acquiring." The difference between the two articles is, that under the first the owner, in parting with possession of his property, does not intend to part with the ownership; as, where one lets another hold his money temporarily, and he conceals it, and denies its possession. Graves v. The State, 25 Texas Cr. App., 333. Under the second, the owner must intend to part with both ownership and possession of the money he gaveto appellant, and the trial judge erred in not instructing the jury on the law applicable to the case. The judgment is reversed, and the cause remanded.
Reversed and remanded.
Judges all present and concurring.