
    TABB v. STATE.
    (No. 7878.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.)
    1. Embezzlement <&wkey;>9 — Contract of bailment held established by delivery of money by insane owner’s brother.
    Where a brother of a lunatic, on finding money in the lunatic’s clothes, turned it over to defendant for safe-keeping, held, that whether the brother he deemed an agent for the lunatic, or merely obligated to care for the money because of the circumstances, he had authority to deliver it to defendant for safe-keeping so as to render defendant a bailee liable for theft as bailee.
    2. Embezzlement &wkey;>5 — To constitute theft by bailee, fraudulent intent must be coexistent with the conversion.
    To constitute the offense of theft by bailee, fraudulent intent must, be coexistent with the act of conversion.
    other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    J. W. Tabb was convicted of the offense of theft by bailee and he appeals.
    Reversed, and cause remanded.
    J. F. Wilkinson and J. A. Ward, both of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., of Midland, and Grover. C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is theft by bailee; punishment fixed at confinement in the penitentiary for a period of two years.

It is charged in the indictment that $135 in money, the personal property of Charley Young, a lunatic, came into the possession of the appellant by virtue of a contract of safekeeping “with Joseph Young, who was then and there a brother of the said Charley Young, and who was then and there agent for the said Charlie Young, and the said Joseph Young did then and there, and who was then and there authorized as such agent of the said Charley Young, and who, as such agent, made a contract of safe-keeping, and who then and there delivered said money as aforesaid to the said J. W. Tabb to hold and safe-keep for the said Charley Young, the owner of the same.”

Charley Young was adjudged a lunatic in the county court of Titus county. Joseph Young found $135 In money in one of the pockets of some of the clothes of Charley Young and brought it up to the appellant, who at the time, was county judge of Titus county. Appellant said that he was the proper person to take charge of the money, and it was delivered to him. The witness said:

“The money was delivered to Mr. Tabb, and it was my understanding that, as a matter of course, he was taking the money to keep it for my brother, Charley Young.”

Later, when Joseph Young called for the iponey, it had been spent through mistake; that being intermingled with his own money in the bank, he had inadvertently withdrawn it. He agreed to execute a note as security for the money, and to this Joseph Young indicated his satisfaction.

Appellant testified touching the transaction in substance as did Joseph Young, stating that Joseph Young turned the money over to him with instructions to keep it for Dr. Powell, superintendent of the asylum. Appellant said that he notified Dr. Powell that he had the money and that only recently had he made demand for the money for Charley Young. Pie also testified that he kept it in the bank with his own funds, and that during the serious illness of his wife, which required, an operation, he drew a check in payment of the expenses which exhausted both his own funds and the money in question; that he had agreed to make a note for it and did make the note, though it was never delivered to the said Joseph Young on account of the sickness and death of appellant’s wife. Since the arrest of the appellant, it is shown that the money and interest has been paid,

Appellant insists that there was no contract of bailment, in that it was apparent that Charley Young, being insane, could not and did not confer upon Joseph Young the authority to act as his agent. It occurs to us that upon finding the money and taking possession of it, Joseph Young became obligated to Charley Young to safe-keep his money, and that as an incident to this obligation, it was within the scope of his authority to deliver it to the appellant for safe-keeping. The facts are set out in the indictment, and if as a matter of law the insanity of Charley Young excluded the idea of agency for him, then Joseph Young’s relation to the money rendered him competent to make the contract which he did make, namely, to deliver the money to the appellant for »safe-keeping for the benefit of his brother, Charley Young. Under these circumstances, appellant’s possession of the funds was that of agent through his contract made with Joseph Young, if any. If the pleader misinterpreted the law fixing the status of the parties, he having fully disclosed the facts, his conclusion that Joseph Young became the agent of Charley Young would not bring about a variance in the proof.

The court instructed the jury that if the appellant, having possession of the money under the alleged bailment, fraudulently converted the same to his own use, etc., to convict. The paragraph embracing this was f.ollowed by the following:

“However, you are further instructed that if you believe from the evidence beyond a reasonable doubt that the defendant converted the money described in the indictment, but you have a reasonable doubt that at the time he did so, he had the fraudulent intent to deprive the owner of the value of same and to appropriate it to his own use and benefit, then you will acquit the defendant; but the fraudulent intent to deprive the owner of its value and to appropriate it to his own use may be conceived at any time after such conversion, if any.”

A specific exception was addressed to the paragraph of the charge quoted. The objection asserts the proposition that, in order to constitute an offense, the fraudulent intent must be coexistent with the conversion. Taylor v. State, 50 Tex. Cr. R. 379, 97 S. W. 473; Branch’s Ann. Tex. P. C. § 2526.

A special charge was requested embracing the instruction as applied to the facts that to authorize a conviction it must appear that at the time appellant converted the money to his own use, he did so with the specific intention of depriving the owner of its value, and that if he had no intent to permanently deprive the owner of the value at the time of its conversion to his own use, there could be no conviction. This charge apparently submitted the defensive theory arising from’the appellant’s testimony and was in accordance with our understanding of the requirements of the law. Taylor v. State, supra; Cannon v. State, 38 Tex. Cr. R. 322, 42 S. W. 981; Eilers v. State, 34 Tex. Cr. R. 344, 30 S. W. 811; Stallings v. State, 29 Tex. App. 220, 15 S. W. 716.

Because of the fault In the charge mentioned and the refusal of the special charge, the judgment is reversed, and the cause remanded.  