Malz v. State , 36 Tex. Crim. 447 ( 1896 )


The appellant was convicted, under Penal Code, Art. 742a, for theft, by conversion of property intrusted to him *Page 450 as a bailee, and his punishment assessed at a fine of $75 and sixty days' imprisonment in the county jail, and from the judgment of the lower court he prosecutes this appeal. The only contention of appellant that requires to be noticed is the exception taken by him to the action of the court in allowing the County Attorney to amend the complaint on which the information in this case was predicated. It appears the complaint originally read, in the beginning part, "Personally appeared, before the undersigned authority, R.L. Winfrey," and it was signed, and appears to have been sworn to by William Jackson. A motion to quash was made on the ground that, in the body of the said complaint, it appeared to have been made by R.L. Winfrey, and not William Jackson. In response to the motion to quash, the County Attorney filed an answer, showing that the complaint, as shown by the affidavit, was signed and sworn to by William Jackson, and asked leave to amend the complaint by erasing the name "R.L. Winfrey," and inserting "William Jackson," which was permitted by the court. To the action of the court the defendant reserved his bill of exception. Code Crim. Proc., Art. 431, provides: "An information shall not be presented by the District or County Attorney until oath has been made by some credible person, charging the defendant with an offense. The oath shall be reduced to writing and filed with the information. It may be sworn to before the District or County Attorney who, for that purpose, shall have power to administer the oath, or it may be made before any officer authorized by law to administer oaths." Article 236 states: "The complaint shall be deemed sufficient without regard to form, if it, have these substantial requisites: (1) It must state the name of the accused, if known, and if not known must give some reasonably definite description of him. (2) It must state that the accused has committed some offense against the laws of the State, naming the offense, or that the affiant has good reason to believe, and does believe, that the accused has committed such offense. (3) It must state the time and place of the commission of the offense as definitely as can be done by the affiant. (4) It must be in writing, and signed by the affiant, if he is able to write his name, otherwise he may place his mark at the foot of the complaint." In the body of the complaint it is not necessary to state the name of the party making the complaint or affidavit at all. The statute requires that the name of the party making such complaint must be signed at the foot of the complaint, and not elsewhere. The complaint in this instance was signed, at the foot thereof, by the person making the complaint. This, with reference to the name of the affiant, was all that was required, and the name, as stated in the body of the complaint, should have been rejected as surplusage, or the discrepancy cured by amendment; and it was competent, as was done, to erase the name of Winfrey and insert that of Jackson. The evidence in the case supports the verdict, and the judgment is affirmed.


DAVIDSON, Judge, absent. *Page 451


This case was affirmed at the Dallas term, 1896, of this court, and now comes before us on motion for rehearing. The only question necessary to be considered in the motion, and which was not originally raised, is as to the construction of Article 877 of our Penal Code. Said article reads as follows: "Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall without the consent of the owner fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft, and shall be punished," etc. The contention of the appellant is that the indictment — which in this case alleges, among other things, a pledge or pawn, and which the proof establishes — is not covered by the statute; that is, that the statute specifies a hiring or borrowing, and the expression "or other bailment" does not include other offenses, where the property may be in the hands of a bailee and converted, because the statute does not define the term "bailment," and our law requires all offenses to be defined before a conviction can be sustained, there being no offenses outside of our statute. In other words, the contention is that the word "bailment" should be specifically defined; that is, that all characters of bailment should be specified. While it is true there are a number of different sorts of bailments, which are ordinarily classed into deposits, mandates, gratuitous loans, bailments for hire, and pledges or pawns, still each of said kinds of bailment is of the same general character, and is defined "to be a delivery of personal property to another, for some purpose, upon a contract, express or implied, that such purpose shall be carried out." See, Fulcher v. State, 32 Tex. Crim. 621; citing, 2 Bl. Comm., 451; Jones, Bailm., 117; and Story, Bailm,. § 2. In 2 Amer. and Eng. Ency. of Law, p. 40, "bailment" is defined as follows: "A transfer of the possession of personal property from one person to another, without a transfer of the ownership of it." These are standard definitions of the term, and are well understood, and there can be no difficulty about the meaning of the term "bailment." It is so plain that we apprehend that no person who receives the possession merely of any character of personal property in trust, upon some contract, express or implied, that the trust shall be performed in regard thereto, but knows that the said property is received in bailment, is not his own, and is to be restored to the owner after the trust has been performed, no matter what the character of the trust may be. Indeed, under our statutes with reference to embezzlements, no question has ever been made with reference to the term "bailee," as used in said statute, and it has been uniformly held that such term was sufficiently defined. Nor does the omission of one character of bailment, as a hiring or borrowing, restrict the meaning of the more comprehensive term "bailment." It was a canon in the construction of criminal laws, under the common-law system, that penal statutes must be construed strictly. But our statutes *Page 452 authorize a liberal construction for the prevention, suppression, and punishment of crime. See, Code Crim. Proc., 1895, Art. 25. It is further provided "that this Code, and every other law upon the subject of crime which may be enacted, shall be construed according to the plain import of the language in which it is written, without regard to the distinction usually made between the construction of penal laws and laws upon other subjects. And no person shall be punished for an offense which is not made penal by the plain import of the words of the law." See, Penal Code, 1895, Art. 9. "Words which have their meaning specially defined shall be understood in that sense, though it be contrary to their usual meaning, and all words used in this Code, except where the word, term, or phrase is specially defined, are to be taken and construed in the sense in which they are understood in common language, taking into consideration the context and subject matter relative to which they are employed." Id., Art. 10. holding, as we do, that the term "bailment" has a well-understood meaning, there was no necessity to further define the same in Art. 877, Penal Code. The testimony in this case, we think, clearly establishes a pledge or pawn of the watch in question, and the conversion on the part of the bailee; and it does not matter that his employer received the proceeds of his conversion, if that be true. The motion for rehearing is overruled.

Motion overruled.