Purcelly v. State , 29 Tex. Ct. App. 1 ( 1890 )

WILLSON, Judge.

This conviction is under Article 741a of the Penal Code, which 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,” etc.

It is charged in the indictment that the defendant did obtain and acquire from J. D. Thomas the possession and custody of a horse by virtue of a contract of borrowing, and did borrow said horse from said J. D. Thomas for temporary use, said Thomas being the owner and in possession of said horse; that afterwards the defendant, while in possession of said horse under said contract of borrowing, did fraudulently convert and appropriate said horse to his own use and benefit, without the consent of the said J. D. Thomas, and with the intent to deprive the said J. D. Thomas of the value thereof, and to appriate the same to the use and benefit of him, the said defendant.

It will be observed that in defining this species of theft an “intent tO' appropriate the property” is not expressly made an element of the offense, as it is in the definition of theft in general. To constitute this offense the following are the essential elements: 1. Defendant must have possession of the property by virtue of a contract of bailment. 2. He must, without the consent of the owner, fraudulently convert the property to his own use. -3. Such conversion must be with intent to deprive the owner of the value of the same. These elements are fully and directly alleged in the indictment, and in our opinion make the indictment sufficient. It was unnecessary we think to allege an intent to appropriate the property, and it is immaterial therefore that the allegation of such intent as made in the indictment is defective. We think the indictment is in conformity with the statute and in all respects sufficient.

We do not think that the evidence raises the issue of a voluntary return of the stolen horse, and it was not error, therefore, for the court to refuse to submit the law'of such issue to the jury, as requested by defendant.

While the charge of the court should have limited the jury in considering the testimony as to the stolen pistol and saddle to the question of defendant’s intent with respect to the horse, no exception was reserved to the charge, nor was any instruction upon this point requested by defendant. We do not consider the error a material one for which the conviction should be disturbed. Gentry v. The State, 25 Texas Ct. App., 614.

By the verdict the defendant is found guilty, which means guilty of the offense charged in the indictment, which offense is declared by the statute defining it to be theft. By the judgment he is adjudged to be guilty of the “fraudulent conversion of a horse,” and the sentence in naming the offense follows the judgment. In this respect the judgment and sentence are incorrect, and they are here reformed so as to show that the offense of which defendant has been adjudged guilty and for which sentence has been pronounced against him is theft of a horse, as charged in the indictment. Code Crim. Proc., art. 869.

As reformed the judgment of conviction is affirmed.

Affirmed.

Judges all present and concurring.