
    KING v. STATE.
    (No. 7637.)
    (Court of Criminal Appeals of Texas.
    Dec. 19, 1923.)
    1. Weights and measures &wkey;>5 — Holder of certificate of public weigher may take cotton away.
    Under Complete Tex. St. 1920, arts. 7828-7835, a party who has cotton, etc., weighed by public weigher, for which a certificate was issued, does not have to leave the cotton in the custody of the weigher, but may take it home or any other place he sees fit.
    2. Embezzlement <&wkey;26 — Indictment held not to charge violation of law.
    An indictment charging that three public weigher’s receipts for cotton were delivered to a bank as collateral security, and afterwards returned to defendant as the bank’s agent, and that he sold the cotton and appropriated the proceeds, held insufficient, in that it referred to a receipt unknown to the law (Complete Tex. St. 1920, arts. 7819-7827%, 7828-7835), and failed to allege facts showing them to be property, or that their possession was necessary to a sale of the cotton or that the receipts were sold and the proceeds appropriated, or that the ownership of the cotton was in tbe bank.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    T. M. King was convicted of embezzlement, and appeals.
    Reversed, and prosecution dismissed.
    Russell & Seale and C. C. Denman, aR of Nacogdoches, and Baskett & De Lee, of Dallas, for appellant.
    W. B. Bates, Dist. Atty., and S. M. Adams', Special Prosecutor, both of Nacogdoches, and Tom Garrard, State’s Atty., of Midland, and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Nacogdoches county of embezzlement, and his punishment fixed at two years in the penitentiary.

Appellant’s motion to quash the indictment was overruled.

The indictment charges that appellant was indebted to a bank and had given notes for said indebtedness, which notes were- secured by—

“three bales of lint cotton weighed by Par-rott, a public weigher, * * * being public weigher’s receipts Nos. 1815-1817; * * * that said receipts were by agreement of the said bank and King delivered to said bank as collateral for said above-described notes and attached to said notes and held by said bank as such, and when sold proceeds to be applied to payment of said notes; that after the hypothe-cation of said receipts to the said bank, by agreement of said bank and King, the said King was intrusted with said receipts as agent of said bank to sell cotton as evidenced by said receipts, and which were of a value of more than $50, which receipts were the corporeal personal property of and belonging to said bank, and which was delivered to the said King by said bank for the purpose of sale in order to liquidate said notes, and said cotton was on said day sold by the said King under said agreement, and said proceeds came into the possession and were under the care of and possession of the said King by virtue of his agency and agreement with said bank as aforesaid, and the said King, without the consent of the said bank, did then and there unlawfully and fraudulently embezzle, misapply, and convert to his own use said money,” etc.

We have endeavored to analyze and determine the legal effect of these allegations. The latter part seems to charge appellant with the misappropriation of certain money, not further described than to say same was .over $50, resulting from the sale of cotton, which cotton is nowhere alleged to have been the property of the bank or by the bank delivered to appellant. As we understand it, however, it charges that three public weigh-er’s receipts representing three bales of cotton were by agreement of the bank and appellant delivered to the bank as collateral security to certain notes owed by appellant, and that such receipts were attached to the notes, and when sold the proceeds to be applied to the payment of said notes. It is alleged that the receipts were the personal property of the bank, and that they were delivered to appellant for the purpose of sale, in order to liquidate said notes; and that the cotton was sold and its proceeds appropriated by appellant. Cotton weigher’s receipts eo nomine are not known to our law. Public warehouse receipts are, and cotton weigher’s certificates are. See Yernon’s Complete Texas Statutes 1920, arts. 7819-7827%, and 7828-7835. If we look to the allegations of this indictment, we fail to find averments of any transfer of title to the cotton, the ownership of which' is not alleged, nor is it stated that the title or possession thereof was ever vested in the bank or for that matter in appellant. There is no averment of the contents or legal effect of a public weigher’s receipt, or that possession of same was in anywise necessary to or could affect the right of sale of the cotton referred to in such receipt, if any. A public weigher’s receipt might or might not be property, dependent, we would suppose, on its terms and the facts surrounding it, though the contents or conditions of the receipts mentioned in this indictment are nowhere set out.

As we understand the provisions of title 132, Vernon’s Complete Texas Statutes, above referred to, the party who has cotton, etc., weighed by a public weigher, and for which a certificate is issued, does not have to leave same in the care or custody of such weigher, but may take it home or any other place he sees fit. It also appears that by the amendment of 1919 a form for cotton weigh-er’s certificate, to be used by all such public weighers, was to be prepared and issued by the commissioner of markets and warehouse.

The indictment referring to a receipt unknown to the law, and which is not set out, and having failed to allege that said receipts were sold by appellant and the proceeds arising from their sale appropriated by him, and having failed to allege that the ownership of the cotton referred to was in the bank, and that the bank was entitled to the proceeds of the cotton sold by the appellant, we are compelled to hold this indictment insufficient to charge a violation of the law. In such case we do not deem it necessary to discuss any of the other errors complained of by the appellant, nor to set out the facts.

The judgment will be reversed, and the prosecution dismissed. 
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