
    TAYLOR v. STATE.
    (No. 11451.)
    Court of Criminal Appeals of Texas.
    March 28, 1928.
    I.Embezzlement <&wkey;31 — Allegation in complaint and information for theft by bailee that agent “was thereunto duly authorized by” owners sufficiently alleged authority to make contract.
    Allegation in complaint and information for theft by bailee that owners’ agent “was thereunto duly authorized by the said” owners held sufficient allegation of agent’s authority to make contract of hiring.
    2. Embezzlement <&wkey;33 — Rutes as to alleging and proving want of owners’ consent apply to theft by bailee.
    Rules in cases of ordinary theft, relative to alleging and proving want of owners’ consent, apply to eases of theft by bailee.
    3. Embezzlement <&wkey;44(6) — State, alleging
    ownership in one person and possession in another, must prove that neither consented to conversion in trial for theft by bailee.
    Where ownership of property converted by bailee is alleged in one person and possession in another, state is required to prove want of consent of each in trial for theft.
    4. Embezzlement &wkey;>35 — State must sustain allegation of complaint and information for theft by bailee that property was converted without owners’ consent.
    Where complaint and information for theft by ’bailee alleged that property was converted without owners’ consent, it was incumbent on state to sustain such allegation.
    5. Embezzlement. <&wkey;44(6) — Want of owners’ consent to conversion cannot be proved! by circumstantial evidence in trial for theft by bailee, where positive or direct proof is available.
    Under certain conditions, want of owners’ consent to conversion of property may be proven by circumstantial evidence in trial for theft by bailee, but not where positive or direct proof thereof is available.
    6. Criminal law <S&wkey;698(I) — Failure to make timely objection to circumstantial evidence of want of owners’ consent to conversion waives right to require direct evidence thereof in trial for theft by bailee.
    Accused’s failure to make timely objection to circumstantial evidence of owners’ want of consent to conversion in trial for theft by bailee is waiver of right to require proof thereof by positive or direct evidence available to state.
    7. Criminal law &wkey;>308 — Conviction of theft by bailee cannot stand, unless evidence of want of owners’ consent to conversion overcomes presumption of innocence.
    Conviction of theft by bailee cannot stand, unless evidence relative to want of owners’ consent to conversion is sufficient to overcome presumption of innocence and form basis of judgment.
    8. Emhezztement <&wkey;44(6) — Agent’s statement that he did not hear principals’ consent to bailee’s conversion of gun held not to show want of consent, as required to support conviction of theft.
    Statement of owners’ agent that he did not hear them give their consent to conversion of gun by bailee held insufficient to show want of consent, and hence insufficient to support conviction of theft by bailee.
    Commissioners’ Decision.^
    Appeal, from Harris County Court at Law; Ben F. Wilson, Judge.
    
      W. B. Taylor, alias C. N. Nelson, was convicted of theft by bailee, and be appeals.
    Beversed and remanded.
    Warren P. Castle, of Houston, for appellant.
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN,- J,

The offense is theft by bailee, a misdemeanor; the punishment a fine of $10 and confinement in jail for one day.

Appellant moved to quash the complaint and information on the ground that they did not allege that D. K. Evans, as agent of the owners.of the gun, was duly authorized to make a contract of hiring with him. Appellant’s motion was properly overruled. A. E. Worley and A. May were alleged to be the owners of the converted property. It was expressly alleged in the complaint and information that the agent “was thereunto duly authorized by the said A. E. Worley and A. May.”, This was sufficient allegation of the agent’s authority to make the contract of hiring. Evans v. State, 70 Tex. Cr. B. 79, 155 S. W. 531.

It was alleged in the complaint and information that the property was converted by appellant without the consent of the agent and without the consent of the owners thereof. It was directly shown that the agent did not give his consent to the conversion. There was no proof, other than a statement by the agent to the effect that he did not hear them give their consent to the conversion, showing want of consent by the owners of said property. The rules in eases of ordinary theft relative to alleging and proving want of consent apply to cases of theft by bailee. Where ownership is alleged in one person and possession in another the state is required to prove the want of consent of each. Branch’s Annotated Penal Code, § 2452; Swink v. State, 32 Tex. Cr. R. 530, 24 S. W. 893. The complaint and information having alleged that the property was converted without the consent of the owners thereof it was incumbent upon the state to sustain such allegation.

Under certain conditions want of consent may be proven by circumstantial evidence. Branch’s Annotated Penal Code, ' § 2452; Brown v. State, 58 Tex. Cr. B. 336, 125 S. W. 915. Where positive or direct proof as to want of consent is available, circumstances alone cannot be resorted to. Brown v. State, supra. In order to require the state to produce positive or direct proof when available to prove want of consent it is necessary that the accused timely object to the use of circumstantial evidence. The failure to object to the use of circumstantial evidence is a waiver of the right of the accused to require that the proof relative to want of consent be made by direct evidence. Meredith v. State, 85 Tex. Cr. R. 239, 211 S. W. 227; Brown v. State, supra. However, a conviction cannot stand unless the evidence relative to the want of consent is sufficient to overcome the presumption of innocence. The evidence as to want of consent must be legally sufficient to form the basis of the judgment. Meredith v. State, supra. In the instant case, the circumstances relied upon by the state to show the want of consent of the owners of the property were insufficient. It necessarily follows that the evidence is insufficient to support the conviction.

The judgment is reversed and the cause remanded.

PEB OUBIAM.

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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