
    JONES v. STATE.
    (No. 9666.)
    (Court of Criminal Appeals of Texas.
    March 17, 1926.)
    1. Larceny <©=>13 — Proof of scheme or device to-procure possession of property or intent to appropriate it to taker’s use is necessary to-sustain conviction of theft, where undisputed testimony shows it was taken with owner’s consent (Pen. Code 1925, art. 1410).
    Proof that accused used fraudulent scheme- or device to procure possession of property, or intended to appropriate it to his own use and benefit at time of taking it, is necessary to sustain conviction of theft under Pen. Code 1925,. art. 1410, where undisputed testimony shows-that it was taken with owner’s consent.
    2. Larceny <g=>3(2) — One obtaining automobile without using fraudulent scheme, and without intent at time of taking to deprive owner of value thereof, held not guilty of theft (Pen. Code 1925, arts. 1410, 1429).
    One renting driverless automobile, without, using fraudulent scheme or device to obtain possession thereof or intending at time to deprive-owner of its value and appropriate it to Ms own use, held, not guilty of theft under Pen. Code 1925, art. 1410, in view of article 1429, defining conversion by bailee.
    3. Larceny <©=>70(3) — In prosecution for theft-of rented automobile; refusal of instruction that accused would not be responsible for acts of third party in stealing it from him- held erroneous (Pen. Code 1925, art. 1410).
    In prosecution under Pen. Code 1925, art. 1410, for theft of automobile, which state’s testimony tended to show was stolen from defendant after he rented it, instruction that he would. not be responsible for- acts of third party in stealing it from him should have been given.
    Commissioners’ Decision.
    Appeal from District Court, McLennan ■ County; Richard I. Munroe, Judge.
    Cullen B. Jones was convicted of theft of' property over the value of $50, and he appeals.
    Reversed and remanded.
    Williams, Williams, McClellan & Lincoln,, of Waco, for appellant.
    
      Sam D. Stinson, State’s Atty., of Austin, and Nat Gentry, Jr., Asst. State’s Atty, of Tyler, for tlie State.
   BERRY, J.

The offense is theft of property over the value of $50, and the punishment is three years in the penitentiary.

The state’s testimony shows that the alleged injured party was the night man in charge of an automobile garage, which was engaged in the business of renting driverless cars, and that on the morning of February 26, 1925, at about 5:30 o’clock, the appellant rented a Ford car, and that he did not say where he was going, but just said that he wanted to make about a- 40-mile drive. The testimony further shows that the ear was later found in Fort Arthur, Tex., and that appellant told the sheriff that some one stole the car from him in Port Arthur. The indictment is under article 1410 of the 1925 P. C. of Texas, O. G. 1329. Under this article of the statute, before a party can be convicted of theft, it is necessary to prove a fraudulent taking of the property. It has been held that, in order to prove this, it must be shown either that the appellant used some scheme or device in order to procure the possession of the property, or that he had the specific intent' to appropriate it to his own use and benefit at the time it was taken. Unless one of these elements appears where the undisputed testimony shows that the property was taken with the consent of the owner, a conviction will not be sustained. And it has been further held that proof of the conversion of the property is not sufficient of itself to show that defendant, at the time of the taking, intended to deprive the owner of the value of the same and to appropriate it to the use or benefit of the defendant. Stokely v. State, 6 S. W. 538, 24 Tex. App. 510; Cox v. State, 12 S. W. 493, 28 Tex. App. 95; Williams v. State, 16 S. W. 760, 30 Tex. App. 155; MeIlvain v. State, 239 S. W. 959, 91 Tex. Cr. R. 443.

The record in this case clearly negatives the idea that appellant induced the party in possession of the automobile to part with the possession thereof by reason of any fraudulent scheme or device, and, there being no proof that he intended at the very time that he rented the automobile to deprive the' owner of the value thereof and to appropriate it to his own use or benefit, it follows that the evidence is wholly insufficient to sustain the conviction. It seems to be clear to us that this is the very character of case that the Legislature had in mind when it passed article 1429 of the 1925 P. C., O. C. 1348, defining conversion by bailee.

In view of another trial we call attention to the fact that, by bill of exceptions No. 8, appellant shows ‘ that the • state introduced testimony which tended to show that the car was stolen from the appellant after he had rented same, and a request was timely presented to the court asking him to instruct the jury to the effect that, if the defendant did not appropriate the ear, but the same was taken from his possession without his consent by a third party and appropriated by the third party, the appellant, un-ders such circumstances, would not be responsible for the acts of such third party in stealing said ear from him. 'In the event of another trial, we think, if the testimony is the same as on this trial concerning this matter, that this issue should be presented to the jury in an appropriate charge.

For the errors above mentioned, the judgment of the trial court 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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