
    NUGENT v. STATE.
    (No. 6171.)
    (Court of Criminal Appeals of Texas.
    March 16, 1921.
    Rehearing Granted April 13, 1921.)
    1. Bail <§=>66—Recognizance by defendant, convicted of theft by conversion, stating that he was convicted of “conversion,” held insufficient.
    Recognizance reciting, that defendant “stands charged in this court with the offense by conversion, and who has been convicted of such offense,” held insufficient, under Vernon’s Ann. Code Cr. Proc. 1916, art. 993, on appeal by a defendant convicted of theft by conversion.
    On Reinstatement of Appeal.
    2. Criminal law <§=>l 131 (7)—Appeal dismissed for defective recognizance reinstated on showing that good recognizance had been mis-copied.
    The Court of Criminal Appeals, having dismissed appeal because of a defective recognizance, will reinstate the appeal on a showing that a good and sufficient recognizance was entered into but was miscopied by the clerk.
    3. Larceny <§=>36—Indictment charging theft by conversion by a bailee held defective.
    Indictment charging theft by conversion by a bailee, under Vernon’s Ann. Pen. Code 1916, art. 1348, alleging that the defendant had possession of a hog owned by a certain person by virtue of a contract of bailment with such person’s wife, and had unlawfully converted, it to his own use, without alleging that the wife was authorized by the owner to make the contract of bailment, held fatally defective.
    4. Larceny <§=>32(3)— Ownership of hog left in the exclusive control of wife by husband who had left home should be laid in the wife.
    If husband has left home, leaving wife in the exclusive control, care, and management of a hog, an indictment charging theft by conversion of the hog by a bailee should allege ownership in the wife and that the contract of bailment was made by her, instead of alleging ownership in husband and that the contract was made by her as his agent.
    Appeal from District Court, Walker County; J. A. Platt, Judge.
    Ed Nugent was convicted of theft by conversion, and he appeals.
    Reversed, and case dismissed.
    M. E. Gates and Jos. E. Henson, both of Huntsville, for appellant.
    C. M. Cureton, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   HAWKINS, J.

The appellant was charged

with theft by conversion of one hog, and his punishment assessed at confinement in the penitentiary for a term of two years.

The state, through the Assistant Attorney General, files a motion to dismiss the appeal in this case because the recognizance as it appears in the record does not describe any offense by name known to the Code of this state, and does not set forth the constituent elements of any offense known to the law. An examination of the recognizance discloses that the motion is well taken. The recognizance recites, after the formal part, that “Ed Nugent, who stands charged in this court with the offense by conversion, and who had been convicted of such offense,” etc.

The recognizance being totally insufficient, undpr article 903, Vernon’s C. C. P., to con-for any reviewing rights upon this court, the appeal is ordered dismissed.

On Reinstatement of Appeal.

Appellant was convicted of theft by conversion of one hog, and his punishment assessed at confinement in the penitentiary for a term of two years.

At a former day of this term the appeal was dismissed on account of a defective recognizance. Appellant files motion to reinstate the appeal, and requesting that a writ of certiorari be granted for the purpose of correcting the record, and attaches to the motion a certified copy of the recognizance, which discloses that the recognizance, as shown in the original record, was miscopied by the clerk, and that the recognizance entered into was a good and sufficient one. Upon the showing thus made, and without the delay incident to granting the certiorari, the appeal will be reinstated, and the cause bon-sidered on its merits.

The first count in the indictment under which appellant was convicted, omitting the formal parts, alleges that—

Appellant “did then and there, having possession of one hog then and there the property of Arthur Branch, by virtue of his contract of bailment with Hattie Branch, whereby the said Ed Nugent agreed to take possession of said hog and keep the same and to attend to the same for the said Hattie Branch, wife of said Arthur Branch, did then and there, unlawfully and without the consent of the said Arthur Branch, the owner thereof, and without the consent of the said Hattie Branch, wife of the said Arthur Branch, and with whom said contract of bailment was made, unlawfully and fraudulently convert said hog, to his, the said Ed Nugent’s, own use and benefit, with in.tent to deprive the said Arthur Branch, the owner, of the value of the same.”

Timely motion in arrest of judgment was filed by appellant attacking the sufficiency of the indictment.

It will appear from an inspection of the instrument that it nowhere appears therein that Hattie Branch was acting as the agent of Arthur Branch, nor any allegations that she was authorized by Arthur Branch to make the contract of bailment with the appellant. Where it is sought to hold an accused for the conversion of property held by him as bailee, under article 1348, Vernon's Penal Code, the indictment must allege the contract of bailment with the owner of the property, or with some person duly authorized to make such contract, and this cannot be done by inference, but must be done by direct averment. The accused cannot hold property under a contract unless made by the owner, or some one duly authorized by the owner. It does appear from the indictment that Hattie Branch is the wife of Arthur Branch, but this court would not be. authorized to conclude, as a matter of law, that, because she is his wife, she was authorized to act as agent with reference to the property in controversy. All the parties to this controversy were negroes, and, in truth, the facts of this case disclose the danger of reaching such a conclusion by inference. Some of the evidence indicates that the marital relations between Arthur and his wife had not been altogether pleasant, and that he had departed from! the family domicile leaving his wife and the hog in question, and, if Hattie’s assertions are to be believed, was living with another woman at the time of the transaction complained of. The hog was the separate property of Arthur, having been given to him. So much of the facts are stated as show the'necessity of direct averment as to agency, or authorization to make contracts of bailment. Many authorities may be found on this subject from this court, holding, the indictment to be fatally defective. We refer only to a few. McCarty v. State, 45 Tex. Cr. 510, 78 S. W. 506; Calkins v. State, 34 Tex. Cr. 251, 29 S. W. 1081; Smith v. State, 38 Tex. Cr. 232, 42 S. W. 302; Elton v. State, 40 Tex. Cr. 342, 50 S. W. 379, 51 S. W. 245.

If Arthur Branch had gone away from home leaving his wife in the exclusive control, care, and management of the hog in question, in view of reindictment,, we suggest it should contain a count alleging ownership in her and bailment made by her.

We are of the opinion appellant’s motion for new trial should have been granted, but do not discuss it on account of the disposition that will have to be made of the case because of the defective indictment.

The judgment of the lower court is reversed, and the case dismissed. 
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