
    FELLOWS v. STATE.
    (No. 8641.)
    (Court of Criminal Appeals of Texas.
    April 8, 1925.)
    1. Larceny &wkey;370'(l) — Instruction held erroneous as omitting essence of offense charged.
    Where deposit was mistakenly credited by bank’s bookkeeper to account of association of which accused was trustee, and evidence warranted inference that accused knowing of mistake, fraudulently drew checks against amount so deposited, instruction in prosecution for theft under Pen. Code, art. 1329, predicating guilt upon accused’s knowledge of the deposit and his withdrawal with intent to appropriate it, and omitting question of bank’s mistake or accused’s fraudulent intent, was erroneous as omitting essence of criminal act charged.
    2. Larceny <&wkey;76(3)— Conviction for theft of one item under indictment charging appropriation of two items sustained.
    Where indictment charged theft of $200, and also theft of traveler’s checks, conviction could be had upon either item, and instruction so framed as to embrace only theft of the money alone, was not improper nor prejudicial, where the evidence covered the transaction.
    <i&wkey;For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hosey, Judge.
    H. A. Fellows was convicted of theft, p.nd he appeals.
    Reversed and remanded.
    Jno. L. Poulter, of Fort Worth, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

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

The indictment charges theft as defined in article 1329, P. C., and charges the taking, without the consent of the owner, the Continental National Bank of Fort Worth, Tex., a corporation, of certain traveler’s checks which are specifically described in the indictment ; also ?200 in money. In the bank mentioned there was an account in the name of the United Producers’ Association, H. Á. Fellows, trustee. On the 30th of April there was a sum- of $39.63 to the credit of that account. There was also in the same bank an account in the name of the United Producers’ Pipe Line Company. There was no relationship between the two concerns, and the appellant had no connection with the one last mentioned. On the 30th of April a deposit in the bank of $1,540.25 was made by tlie United Producers’ Pipe Dine Company. The funds and the deposit slip ’were delivered to the teller, and, after checking and receipting for the funds, he delivered the deposit slip to the bookkeeper who, by mistake, entered the credit to the account of the United Producers’ Association. On the following day the appellant drew his checks upon the account of the United Producers’ Association, H. A. Fellows, trustee, for several amounts, one for $200, the other in payment of certain Traveler’s checks aggregating $1,100, in amount. The $200, as well as the traveler’s checks, were applied for and received by the appellant.

. There was evidence from which the jury would be authorized to draw the inference that the. appellant knew of the mistake, and that in drawing the check against the account of the United Producers’ Association he acted with a fraudulent intent.

In submitting the case to the jury the court, after defining theft in accord with article 1329, P O., also defined the wrongful taking by false pretext in accord with article 1332, P. <j. The matter was submitted to the jury in a paragraph which we quote as follows:

“Now, therefore, if you find and believe from the evidence beyond a reasonable doubt that the Continental National Bank, a corporation, placed to the credit of the defendant herein the sum of $1,540.25, and that thereafter in the county of Tarrant and state of Texas on or about the date charged in the indictment the defendant having knowledge thereof withdrew all or a part of said funds amounting to $50.00 or over from the bank with intent to appropriate the same to his own use and benefit and with intent to. deprive said bank of the value of the same, then you will find the defendant guilty of the offense as charged in the indictment and assess his punishment at confinement in the state penitentiary for some period of years not less than two nor more than ten in your discretion. And, unless you do so find and believe from the evidence beyond a reasonable doubt, then you will acquit the defendant and say by your verdict not guilty.” ,

Complaint is made of that part of the charge which relates to the false pretext. We fail to perceive its applicability. However, we would not regard it as harmful under the present record. We conceive the fault in the charge to be that the paragraph of the charge which has been quoted takes no note of the question of mistake upon the part of the bank or the fraudulént intent upon the part of the appellant. In the part of the charge quoted, we have italicized the question submitted to the jury which was not whether the bank, by mistake, placed the $1,540.25 to the credit of the appellant’s account nor whether ■ he fraudulently withdrew it, but whether the appellant knew that it was deposited and thereafter withdrew it with the intent to appropriate it to his own use. The essence of the alleged criminal act is omitted from the instruction to the jury. If the deposit was not by mistake of the bank or belonged to appellant, there was no offense. It being to his credit in the bank, prima facie it was his. The state introduced evidence sufficient to overcome the prima facie presumption, but the charge submitting the matter to the jury cannot be regarded as adequate against the objection when it takes no note of the question of mistake or the fraudulent intent.

The complaint of the appellant that the offense submitted to the jury was not in accord with that embraced in the indictment we think is not tenable. It is true that in the indictment appellant was charged with the theft of the traveler’s checks. He was also charged with the theft of $200. It was permissible that reliance for a conviction be had upon either of the items.. The fact that the charge of the court was so framed as to embrace the theft of $200 alone was not improper nor prejudicial to the appellant. If the $1,540.25 were deposited to the appellant’s credit by mistake of the bank, and appellant, knowing of the mistake, fraudulently withdrew $200 of the amount with the intent to appropriate it to his own use and to deprive the owner of its value, he would be guilty. Both the facts in evidence and the charge of the court were such as to cover such a transaction. See Byrd v. State, 90. Tex. Cr. R. 418, 235 S. W. 891, in which a transaction not different in its 'legal consequence from the present case was held to sustain a conviction of theft as defined in article 1329, supra.

On account of the defect in the charge pointed out, however, it is deemed necessary that the judgment- be reversed and the cause remanded. It is so ordered.  