
    McALLISTER v. STATE.
    (No. 10945.)
    Court of Criminal Appeals of Texas.
    Oct. 5, 1927.
    Larceny <&wkey;40( 11)— Evidence, in prosecution for theft of automobile delivered to defendant under contract of borrowing, held insufficient to sustain conviction.
    In prosecution against bailee of automobile under contract of borrowing for theft by fraudulently converting automobile to own use, evidence of contract entered into between defendant and owner, terms of which were to be finally complied with at some future date, and that car was delivered to defendant pending consummation of trade, was insufficient to sustain allegations of indictment that defendant was in possession of car under contract of borrowing.
    Commissioners’ Decision.
    Appeal from District Court, Taylor County; W. R. Ely, Judge.
    Arch McAllister was convicted of theft by bailee of property over value of $50 and be appeals.
    Reversed and remanded.
    Lee R. York, of Abilene, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for tbe State.
   CHRISTIAN, J.

Tbe offense is theft by bailee of property over tbe -value of $50; tbe punishment confinement in tbe penitentiary for two years.

Appellant challenges tbe sufficiency of tbe evidence. Tbe indictment which was returned on January 7, 1927, charged appellant with having on tbe 15th day of November, 1926, as bailee under a contract of borrowing, fraudulently converted to bis own use an automobile of tbe value of $500, belonging to W. Homer Shanks. Appellant was tried and convicted on tbe 21st day of January, 1927. He defended on tbe ground that tbe automobile was delivered to him under a contract of sale, and tbe court instructed tbe jury on tbis issue as follows:

“If the automobile in controversy was delivered to the defendant on the promise -of defendant to execute and deliver a deed to W. Homer Shanks of a certain lot, or upon the promise of the defendant to complete certain details of a trade, then such delivery would not be upon a contract of borrowing, and if you so believe, or have a reasonable doubt thereof, you will acquit the defendant.”

Tbe facts upon which tbe prosecution is based are as follows: Appellant offered to trade a lot to tbe prosecuting witness for an automobile and $400 in cash, a value of $700 being placed on tbe automobile by tbe parties. According to tbe testimony of tbe prosecuting witness, appellant stated to him that be bad a responsible man who would buy the lot if a bouse were erected on it. It was agreed by the appellant and witness that appellant would deed tbe lot to tbe witness and that tbe witness would in turn deed it back to appellant, taking appellant’s note for $1,100. Further, according to tbe testimony of tbe prosecuting witness, appellant assured him that a bouse would be erected on tbe lot by a responsible man. It was expected by tbe parties, according to tbe testimony of tbe witness, that tbe note for $1,100 would be taken up by a loan company within 60 days after tbe bouse was built. Tbe testimony of tbe prosecuting witness is not entirely clear as to tbe immediate circumstances surrounding bis delivery of tbe car in question to appellant. His first statement is, in substance, that appellant said be was in need of a car, and that be (tbe witness) told appellant to go ahead and use tbe car before tbe closing of the trade. Under cross-examination, tbe witness testified that be was to give appellant tbe car and $400 for the lot, that appellant was to convey him tbe lot, and that under that contract be turned the car over to appellant. Tbe witness stated that at the time of delivering the car to appellant, wbicb was in November, 1926, appellant talked like the deal would be closed up in two or three days, and that be (tbe witness) thought tbe deal was closed or would be closed and that be would never have to take tbe car back. Further testifying under cross-examination, tbe witness said:

“I did not have any understanding with Mr. McAllister that he would return this car to me when I turned it over to him under this contract of sale. I did not have any understanding with him as to whether it would ever be returned or not. The only thing was he was just to use it. It was just to be his car after I became satisfied with the solvency of the purchaser of the lot.”

After tbe delivery of tbe car to appellant, it developed that appellant bad no record title to the lot be agreed to convey to tbe prosecuting witness. Appellant used the car and equipped it with new casings, in spite of the fact that, according to the testimony of the prosecutor, he advised appellant that probably he had better not equip the car with new casings until the deal was closed. The trade between the prosecuting witness and appellant was never consummated. Appellant signed a note for $1,100 which he delivered to the jiroseeuting witness together with a deed executed by appellant, with a space left blank for the filling in of the description of the lot. An abstract of title to the lot was delivered to prosecuting witness, which failed to show that appellant had title to said lot. On November 27, 1926, the prosecuting witness addressed a letter to appellant in which he advised him that the abstract should be brought down to date. He stated in this letter, among other things, the following:

“This will confirm my deal to take the lot at $1,100, $700 of which is to be paid by my Dodge coupé and $400 in cash when you show that the lot will have a house of modern type put on it and bought by a solvent purchaser.”

The prosecuting witness testified that appellant was to have 60 days to build a house on the lot. He further stated that appellant had 60 days in which to show him (the prosecuting witness) a responsible man who had agreed to take the house, and that the main consideration for the trade was the building of a house on the lot. In the latter part of November or early part of December, 1926, search was instituted for appellant by the prosecuting witness and he could not be found. On December 27, 1926, appellant was arrested in Douglas, Ariz., in possession of the car.

Testifying for himself, appellant asserted title to the car, claiming that he had received it under a contract of sale.

The state was required, under the allegations in the indictment, to show that appellant was in possession of the car under a contract of borrowing. The uncontradicted evidence shows that at the time of the delivery of the car, the owner and appellant entered into a contract, the terms of which were to be finally complied with at some future date, not then fixed by the parties. As we understand the testimony of the prosecuting witness, it shows that appellant promised to complete certain details of the trade in the future, and that the car was delivered to appellant to be used by him pending the final consummation of the trade. On cross-examination, the prosecuting witness testified that the car was delivered to appellant under the contract of sale made by him and appellant. This testimony in our opinion excludes the idea that appellant came into possession of the ear in question under a contract of borrowing. It would follow that the allegation in the indictment that appellant was in possession of the car under a contract of borrowing is not sustained by the evidence.

Because the evidence is insufficient to sustain the judgment of conviction,' the judgment is reversed and the cause remanded.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court. 
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