
    OFFRICHT v. STATE.
    (No. 3486.)
    (Court of Criminal Appeals of Texas.
    March 31, 1915.)
    1. Larceny <@=>15 — Theft by Bailee — Elements.
    To constitute theft by bailee, there must be a contract of hiring, borrowing, or some other bailment as a predicate.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. §§ 39-42; Dec. Dig. <@=>15.]
    2. Larceny <@=>36 — Theet by Conversion-Complaint and Information — Requisites.
    A complaint and information, which alleges that accused having possession of $3 of the property of prosecutor, by virtue of an attempted purchase of merchandise by the • prosecutor from accused, in -which accused took possession of the money, that there was a misunderstanding as to the price to be paid, that all of the merchandise was surrendered to accused, who converted the money to his own use, with intent to deprive prosecutor thereof, do not charge a contract of bailment and are insufficient to charge theft by bailee.
    [Ed. Note. — For other cases, see Larceny, Cent. Dig. § 96; Dec. Dig. <&wkey;36.] '
    3. Lament <&wkey;55 — Theet by Bailee — Evidence.
    Evidence heldI not to show a theft by bailee.
    [Ed. Note. — For. other cases, see Larceny, Cent. Dig. §§ 152, 164, 165, 167-169: Dec. Dig. &wkey;55J
    Appeal from Hunt County Court; H. O. Norwood, Judge.
    Paul Offrieht was convicted of theft by bailee, and he appeals.
    Reversed, and cause remanded.
    Neyland & Neyland, of Greenville, for appellant. <0. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted of theft by bailment under the following complaint and information; the two instruments being the same, only the charging part from the complaint is copied. It charges that appellant — >

“did * * * then and there, having possession of $3 in lawful money of the United States, of the value of $3, then and there the property'of James Stacy, by virtue of an attempted purchase and sale of merchandise by the said James Stacy from the said Paul Offrieht, in which the. said Paul Offrieht took possession of the said money on said sale and trade, where there was a misunderstanding as to the price to be paid for the goods, and that all of said goods were then surrendered to the said Paul Offrieht by the said James Stacy, and the said Paul Off-rieht refused to return the said $3 to the said James Stacy, and did then and there unlawfully, and without the consent of the said James Stacy, the owner thereof, fraudulently convert said $3 to his (the said Paul Offrieht) own use and benefit, and with the intent then and there to deprive the said James Stacy, the owner thereof, of the value of the same, against the peace and'dignity of the state.”

In order to convict appellant of theft by conversion, there must be a contract of hiring, borrowing, or some other bailment as a predicate. Motion was made to quash the complaint'and information because they did not so charge. We are of opinion this contention is correct. The complaint and information neither charged directly or indirectly a bailment, nor did they charge a contract of hiring or borrowing; in fact, both instruments charged that the money passed from Stacy to appellant on a sale and purchase, which resulted in trouble between them, and sale passed out or was practically rescinded. This was not a bailment, did not create any character of agency, nor is any fact set up which would create a bailment. ‘ Quite a number of .'objections and contentions are urged against the conviction.

The bills of exception are seven in number. It is not the purpose of this opinion to review these exceptions. Some of them are well taken. They are not noticed, because the evidence does not show a theft by conversion.

The state’s case may be stated from the testimony of James Stacy, the alleged injured party. His residence was in Hopkins county, but he and his brother had been in Baylor county during the months of October, November, and December, picking cotton, and were on their, return by way of Commerce to their home. They stopped in Greenville on the 18th day of December, went into appellant’s store, and looked at and priced some clothing. Stacy, after examining through the stock, found a suit of clothes which pleased him. It was marked $10.48. He offered appellant $7.50 for the suit. ’The appellant insisted, however, on $8.50 for the suit. He says that after quite a while defendant agreed to take $8 for the suit. He and his brother left the store; after walking around the town, returned to appellant’s store and told him that he would take the suit at $8 if he would have the pants cut to fit. The pants were not hemmed, but were stitched around the bottom. The defendant agreed to have the pants made to fit, and did so. Stacy then asked appellant to throw in a belt, which he did. He also bought a suit of underwear, for which he was to pay 75 cents. He put on the underclothing and the suit and pulled out his money. in payment and passed it to appellant, consisting of a $5 bill, a $1 bill, and $3 in silver. This made $9. Appellant contended his price was $8.50 for the suit and 75 cents for the underwear, which made $9.25. Stacy contended that he was to get the suit for $8, underclothing at 75 cents, and that appellant owed him 25 cents. Stacy says upon this disagreement he pulled off the clothes, and appellant handed him back $6, retaining $3 of the money. Stacy says:

“We argued for a while, and I picked up the two bills, the $5 bill and the $1 bill, and told him that the clothes were not mine, took the clothes and underwear off, and laid them on the counter, and put on my old clothes, and asked him for the $3 back which he had picked up, and defendant said, ‘No, you don’t get it back. I will have to charge you the $3 for my time, and because I had to cut the pants off.’ ”

Appellant refused to return the $3. Subsequently appellant did tender him back $2 of the money.

Without going into detail on the state’s side of the ease, the above sufficiently shows the incriminating evidence, if there be any.

The defendant’s case is made by his testimony and that of two of his clerks. It is sufficient to take the defendant’s statement as to his side of the matter. I-Ie agreed substantially with the witness Stacy as to the trade, but disagreed with him as to the amount agreed upon; his contention being that it was $8.50 for the suit and 75 cents for the underwear, making $9.25. Stacy went away and came back in appellant’s absence, but his clerk Germany called his attention to the fact that Stacy wanted the suit, and ha went back to where Stacy was and had the pants cut to suit Stacy, and on the request or demand of Stacy threw in a belt The reason for cutting the pants was they were too long for Stacy. Stacy put on the clothes, but when they had a difference as to the price Stacy pulled off the clothes and placed them on the counter. He agrees that he kept $3, thinking that he had a right to do so under the circumstances, because he had been damaged, he thought, that much, as the suit of clothes had been placed in a position by the peculiar length of the pants that he could not sell them or it would be a difficult matter; the length of the pants being cut down to 30 inches, which was an unusual size. He says after looking into the matter he thought perhaps he had not been damaged as much as $3, and tendered back to Stacy $2, retaining one. However, the $2 was tendered back after the criminal prosecution was instituted. He testified also that he acted in good faith with Stacy and believed honestly he had the legal right to charge him up with the damage to the suit of clothes, and because he believed that Stacy was trying to make him sell him the suit of clothes at a price that he had never agreed to take. He is sustained in this by the testimony of Max Uniee and Will Germany. Under the facts, we are of opinion that theft by conversion is not shown.

The judgment is reversed, and the cause remanded. 
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