
    Joe D. Smith v. State
    No. 31,429.
    March 16, 1960
    
      
      Robert B. Billings, Dallas, for appellant.
    
      Henry Wade, Criminal District Attorney, Thomas B. Thorpe, Frank Watts, Phil Burleson, Assistants District Attorney, Dallas, and Leon Douglas, State’s Attorney, Austin, for the state.
   DICE, Judge.

The offense is felony theft by bailee; the punishment, 5 years.

The indictment alleged that appellant fraudulently converted to his own use $265 belonging to Bessie Johnson which he had in his possession “by virtue of his contract of hiring, borrowing and bailment with the said Bessie Johnson.”

Insofar as it alleges the bailment of hiring and borrowing, the indictment is not subject to the attack made upon it (that it does not allege the kind of bailment involved).

In Blake v. State, 147 Tex. Cr. R. 333, 180 S.W. 2d 351, it was held that an indictment for theft by bailee which alleged only that the defendant had possession of the property “by virtue of a bailment between them” was fatally defective because it failed to give notice of the crime with which he was charged as required by Art. 1, Sec. 10 of the Constitution of Texas.

The portion of the indictment alleging a bailment other than by virtue of a contract of hiring and borrowing was insufficient under the authority mentioned, and the motion to quash the indictment was to that extent good.

The evidence relied upon by the state was to the effect that the money appellant was charged with appropriating was turned over to him by Mrs. Johnson in the form of a check, with the understanding that appellant would use it to purchase an air conditioner and deliver it to her; that he cashed the check but failed to deliver the air conditioner.

These facts show neither a contract of hiring nor contract of borrowing, but show another form of bailment which was recognized in Rick v. State, 151 Tex. Cr. R. 426, 207 S.W. 2d 629, but which was not sufficiently charged in the indictment herein.

The judgment is reversed and the cause remanded.

Opinion approved by the Court.  