Gaddy v. State

8 Tex. Ct. App. 127

• Court: Court of Appeals of Texas
• Decided: July 1, 1880
• Status: Published

Opinion

White, P. J.

The indictment in this case purports to charge appellant with embezzlement, the embezzlement consisting in the fact that as bailee he had fraudulently converted to his own use a borrowed horse.

“A loan for use, called in the civil law commodatum, is a bailment to be used by the bailee temporarily, or for a certain time, without reward, * * * and if a horse be gratuitously lent for a journey, it is a case of commodatum.” Story on Bail., sect. 6; 2 Pars. on Con. (5th ed.) 108.

Our statute concerning the offence makes it applicable to any bailee of property who fraudulently misapplies or converts to his own use, without the consent of his employer, any property which shall have come into his possession or shall be under his care by virtue of his employment. Gen. Laws 15th Leg., p. 9, “An act to amend art. 771 of the Penal Code; ” Rev. Penal Code, art. 786.

The indictment is defective in that it does not allege by direct averments that at the time of the conversion the animal was in the possession of the defendant by virtue of his agency or of the bailment. “An indictment upon a statute must state all such facts and circumstances as constitute the statute offence, so as to bring the party indicted precisely within the provisions of the statute. 1 Chitty’s Cr. Law (ed. of 1841), 281-283; Archb. Cr. Pr. & Pl. (ed. of 1846) 50. If the statute is confined to certain classes of persons, or to acts done at some particular time or place, the indictment must show that the party indicted, and the time and place when the alleged criminal acts were perpetrated, were such as to bring the supposed offence directly within the statute.” The People v. Allen, 5 Denio, 76.

‘ ‘ The facts and circumstances which are necessary to constitute a complete offence must be stated with distinctness and certainty.” The People v. Poggi, 19 Cal. 600.

An indictment for this offence was held bad by our Supreme Court in The State v. Johnson, 21 Texas, 775, because it did not distinctly state that the defendant had the possession or care of the money by virtue of his clerkship when he converted it to his own use. Such allegation is required by all the standard precedents. 1 Whart. on Prec. of Indict. (3d ed.) 466—469. See also The State v. Longworth, 41 Texas, 162; Gibbs v. The State, 41 Texas, 491; Baker v. The State, 6 Texas Ct. App. 344.

Because the indictment is insufficient in law, the judgment is reversed and the cause remanded.

Reversed and remanded.