
    MOORE v. STATE.
    (No. 5975.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1920.)
    1. Embezzlement <S&wkey;35 — Allegation of converting money must be proved.
    Where an indictment charged that defendant converted money it was, essential that the proof sustain the allegation.
    2. Embezzlement &wkey;>ll(I) — Larceny <g&wkey;> 15(1) —Embezzlement statute applicable where money converted, but for conversion of goods statute on theft by bailee would apply.
    If defendant converted goods, apivropriating them to his own use, the offense would come under Pen. Code 1911, art. 1348, defining theft by bailee; but if he had sold the goods belonging to another, at the other’s direction, and converted the money, the embezzlement statute (article 1416) would apply.
    3.Embezzlement <&wkey;48(l) — Defense of purchase should be submitted.
    In a prosecution for embezzlement of money derived from the sale of goods, the defense of purchase should be submitted, upon defendant’s request, in a specific and affirmative manner.
    Appeal from District Court, Erath County; J. B. Keith, Judge.
    Kay Moore was convicted of embezzlement, and he appeals.
    Reversed and remanded.
    Robt. L. Thompson, of Stephenville, for appellant.
    Alvin M. Owsley, Asst. Atty. Gen., for the State.
   MORROW, J.

Appellant appeals from a judgment convicting him of embezzlement, and fixing his punishment at confinement in the penitentiary for two years.

The prosecution is founded upon the allegation that appellant, as the agent of one Thompson, came into possession of a sum of money which he fraudulently appropriated. From the state’s standpoint, the facts disclose that Thompson placed in the possession of appellant certain produce, consisting of various 'articles invoiced in detail, with the price affixed to each article, aggregating something over $400. The appellant was to take the goods to Desdemona, and sell them at the prices named in the invoice; otherwise, to return the-articles. It was the state’s theory that he sold a part of the property, and the fact that he returned a part of it is not disputed. Appellant’s testimony was to the effect that he bought the goods outright. Prom the state’s testimony, appellant’s compensation was to arise from the sale of the goods at a price beyond that of the invoice, and also he was to be compensated at the customary price of transporting the goods from Dublin, the place of the contract, to Desdemona.

We find in the record no satisfactory proof that appellant sold the goods, or any part of the goods, and converted them into money, or into any particular sum of money. The indictment having charged that appellant converted money, it was essential that the proof sustain this allegation, and the absence of such proof renders it necessary that the judgment be reversed.

The appellant contends that the prosecution cannot be sustained, for the reason that, if an offense grows out of the facts proved, it would be that denounced by article 1348, P. C., defining theft by bailee. If the appellant converted the goods — that is, if he appropriated the goods to his own use — the offense would come under tlie article named. We have so held in Lee v. State, 81 Tex. Cr. R. 129, 193 S. W. 313, in which will he found other eases to the same effect The bailment, however, contemplated that appellant would sell the goods, and, from the state’s standpoint, that the money derived therefor, to the extent of the prices of the articles sold fixed in the invoice, would be held by the appellant for Thompson, and that he would be obliged to deliver it to Thompson. To these facts, we think, if appellant converted the money belonging to Thompson, the embezzlement statute would apply. See article 1416, P. C., defining that offense.

On another trial, appellant’s defense of purchase should be submitted, upon his request, in a specific and affirmative manner.

For the reason that the evidence fails to disclose that the money described in the indictment, or any specific part thereof, came into the possession of the appellant under the transaction, the judgment is reversed, and the cause remanded.  