
    WILLIAMS v. STATE.
    (No. 4134.)
    (Court of Criminal Appeals of Texas.
    June 21, 1916.
    Rehearing Denied Oct. 4, 1916.)
    1. Indictment and Information <&wkey;125(45) —Counts Charging Same Transaction.
    In a prosecution for theft as bailee and embezzlement, the court properly overruled defendant’s motion to quash the indictment for ambiguity, in that the first two counts charged theft as bailee and embezzlement of the property of one person, and the second two counts theft as bailee and embezzlement of the property of another person, since an indictment may contain as many counts charging the same transaction as is thought necessary to meet the proof as it transpires, and to prevent a variance.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 393; Dec. Dig. <&wkey;125(45).]
    2. Ckiminal Law <&wkey;1167(2) — Harmless Error — Election — Refusal to Require — Cure by Instructions.
    In a prosecution for theft as bailee and embezzlement, the trial court committed no reversible error in refusing to require the state_ to elect between counts alleging theft as bailee and embezzlement of the property of one person and other counts charging theft as bailee and embezzlement of the property of another, where only the former counts were submitted.
    [Ed. Note. — -For other cases, see Criminal Law, Cent. Dig. § 3101; Dec. Dig. &wkey;1167(2).]
    3. Indictment and Information <&wkey;132(5)— Requiring Election by Charge.
    In a prosecution for theft as bailee and embezzlement, where the court in his charge submitted to the jury only the counts of the indictment charging- the crimes as against the property of W., not submitting those charging the crimes as against the property of P., there was an election sufficient to meet the defendant’s motion to require the state to elect between the counts alleging the crimes as against the property of W. and P.
    [Ed. Note. — For other eases, see Indictment and Information, Cent. Dig. § 444; Dee. Dig. &wkey;132(5).]
    4. Embezzlement <&wkey;35 — Evidence — Production of Check — Necessity.
    Where the theft and embezzlement alleged was of money, and not of any check, though the proof showed defendant procured the money on a cheek and converted it, it was unnecessary to produce the check.
    [Ed. Note. — For other eases, see Embezzlement, Cent. Dig. §§ 55-59; Dec. Dig. &wkey;»35.]
    5. Criminal Law <&wkey;814(3) — Trial —Instruction — Abstractness.
    In a prosecution for theft as bailee and embezzlement, where the proof did not show nor tend to show that defendant had any interest as bailee in the money he stole, the court properly refused to charge that, if he had any interest in the money, he would be guilty of no offense.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1985; Dec. Dig. <&wkey; 814(3).]
    6. Criminal Law <&wkey;1184 — Appeal—Ordering Reformation of Sentence.
    In a prosecution for crime, where the sentence of the trial court does not comply with the indeterminate sentence law, the Court of Criminal Appeals will order it reformed to comply therewith.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3199, 3200; Dec. Dig. &wkey;> 1184.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Scott Williams was convicted of crime, and he appeals.
    Sentence reformed, and judgment affirmed.
    D. R. Pickens, of San Antonio, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   PRENDERGAST, P. J.

Appellant was convicted of theft as bailee, and his punishment assessed at three years’ confinement in the penitentiary. The indictment was in four counts: The first, alleged theft as bailee of the property of A. N. Prince; the second, embezzlement of the property of the same person; the third, theft as bailee of the property of W. S. Willis; and the fourth, embezzlement of the property of said Willis.

The court committed no error in overruling appellant’s motion to quash the indictment on the ground that it was ambiguous, in that the first two counts charged the theft and embezzlement of the property of Prince, and the second two that of Willis. The rule is that an indictment may contain as many counts charging the same transaction as is thought necessary to meet the emergencies under the testimony; that is, to meet the proof as it transpires and to prevent a variance. 1 Branch’s Ann. P. C. § 507, and cases cited.

The court committed no reversible error in refusing to require the state to elect between the counts alleging the theft and embezzlement of the property of Prince and the theft and embezzlement of the property of Willis. It is not shown when this motion was made and acted upon by the court. However, the court in his charge submitted only those counts applying to Willis and submitted neither as applicable to Prince. This was an election sufficient to meet appellant’s motion, even if well made.

The theft and embezzlement alleged was of money, and not of any check. It is true the proof showed that appellant procured the money on a check, and converted the money after he had procured it. It was therefore unnecessary to produce the check. However, if it had been, the record shows that the check was in the possession of an absconded “pal” of appellant, and that it was therefore impossible to produce the check even if it had been necessary to do so.

The proof did not show, nor tend to show, that appellant had any interest in the money he stole as bailee. Hence the court did not err in refusing his charge that, if he had any interest in the money, he would be guilty of no offense. Besides, the request for such an instruction is not raised in such a way that we could review it under the recent statute and decisions.

The evidence was clearly sufficient to support the conviction. It is unnecessary to detail it. Malz v. State, 36 Tex. Cr. R. 451, 34 S. W. 267, 37 S. W. 748. See, also, Leonard v. State, 56 Tex. Cr. R. 307, 120 S. W. 183; Harding v. State, 49 Tex. Cr. R. 601, 95 S. W. 528; Goodwyn v. State, 64 S. W. 251.

The sentence does not comply with our indeterminate sentence law. It will therefore be necessary for it to be reformed, so as to comply therewith, which is hereby ordered.

The sentence will be reformed, and the judgment affirmed. 
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