
    O’MARROW v. STATE.
    (Court of Criminal Appeals of Texas.
    May 8, 1912.)
    1. Embezzlement (§ 15) — Partnership Property.
    A partner cannot be guilty of embezzling the partnership property; the statute defining the offense not mentioning partners among those who may be guilty of the crime, and, aside from statute, a partner being entitled to use the property, so as to be only civilly liable, if he converts it to his own use.
    [Ed. Note. — Eor other cases, see Embezzlement, Cent. Dig. § 16; Dec. Dig. § 15.]
    2. Embezzlement (§ 24%) — 'Venue.
    Under Code Cr. Proe. 1895, art. 240, one may be prosecuted for embezzlement in the county where he received the property, though he converted it to his own use in another county.
    [Ed. Note. — Eor other cases, see Embezzlement, Dec. Dig. § 24%.]
    3. Partnership (§ 9) — Agreement Creating — Employment Contract.
    An agreement, whereby a storekeeper agrees to give to another 20 per cent, of the profits to attend to the business and do the buying, creates merely the relation of employer and employé, and not a partnership.
    [Ed. Note. — Eor other cases, see Partnership, Cent. Dig. §§ 23, 24; Dec. Dig. § 9.]
    4. Partnership (§ 21) — Contract Creating — Construction.
    An arrangement between a storekeeper and accused, whereby accused is to ship to the store certain things belonging to him, to become the property of a partnership between him and the storekeeper, and is to take charge of and manage .the store, and the profits to be divided equally, and is to immediately go to another city and purchase goods with money furnished him by the storekeeper and then return, after shipping his things, is merely a conditional agreement; and the partnership does not come into existence until he has shipped the things as agreed, and has returned and complied with the other conditions of the arrangement.
    [Ed. Note. — For other eases, see Partnership, Cent. Dig. § 6; Dec. Dig. § 21.]
    5. Criminal Daw (§§ 763, 764) — Trial—Instruction — Weight of Testimony.
    In a trial for embezzlement, an instruction that, if the jury found from the evidence, beyond a reasonable doubt, that the defendant and the prosecuting witness agreed that the defendant was to run the store for the prosecuting witness, and receive for his services 20 per cent, of the net profits, the defendant was an agent and employé, and not a partner, was not upon the weight of testimony.
    [Ed. Note. — For other cases, see Criminal Daw, Cent. Dig. §§ 1731-1748, 1752, 1768, 1770; Dec. Dig. §§ 763, 764.]
    6. Criminal Daw (§ 1172) — Appeal—Harmless Error — Instructions.
    In a trial for embezzlement, an instruction, that the defendant and the prosecuting witness were partners, if they agreed to engage in business, each to furnish certain goods and money necessary to run the business, and each to share in the profits, was harmless, being more favorable’ to the defendant than he was entitled to, where there was no evidence that he had complied with certain conditions of the agreement necessary to complete the formation of the partnership.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3128, 3154-3157, 3159, 3163, 3169; Dec. Dig. § 1172.]
    7. Criminal Law (§ 1174) — Appeal—Harmless Error — Misconduct of Juror.
    In an embezzlement trial, the misconduct of a juror in stating to his fellow jurors, as of his own personal knowledge', a matter which was not evidence on any material issue in the case was harmless.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 3170-3178; Dec. Dig. § 1174.]
    8. Criminal Law (§ 1124) — Appeal—Record— Questions Presented.
    Misconduct of a juror in stating a matter of his own knowledge to his fellow jurors, made a ground for motion for new trial, but which was contested by the state, is not reviewable on appeal from a conviction, where the evidence as to the fact of the juror’s statement is not in the record.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2939, 2946-2948; Dec. Dig. § 1124.]
    Appeal from District Court, Camp County; R. W. Simpson, Judge.
    Mike O’Marrow was convicted of embezzlement, and he appeals.
    Affirmed.
    Smith & Bass, of Pittsburg, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   HARPER, J.

Appellant was indicted, tried, and convicted of embezzlement, and his punishment assessed at two years’ confinement in the penitentiary.

1. Appellant insists that he was a partner of the prosecuting witness, Mr. Morris, and that the money converted, if converted, was partnership funds, and that one who appropriates money belonging to a partnership is not guilty of embezzlement, and cites us to many authorities. These we do not deem it necessary to discuss, for it is doubtless true that one who appropriates to his use partnership effects is not guilty of embezzlement under our statute; it providing that any clerk, agent, attorney at law, or, in fact, servant or employé, who shall embezzle, fraudulently misapply, or convert to his own use, without the consent of his principal or employer, any money or property which may have come into his possession or be under his care by virtue of such office, agency, or employment, shall be deemed guilty of embezzlement. Thus one who is a partner does not come within that definition; and, in addition to that fact, one who is a partner generally has the right to use the property, and if he appropriates it to his own individual use he becomes civilly, but not criminally, liable.

However, the contention that the district court of Gamp county had no jurisdiction, even if appellant was not a partner, cannot be sustained. The money was received by appellant in Camp county, and article 240 of the Code of Criminal Procedure of 1895, provides that the offense of embezzlement may be prosecuted in the county in which he received the property. .

2. Appellant, in his brief, earnestly insists that the facts show that the prosecuting witness and appellant were partners. Mr. Morris testified that he was a fa,rmer, owned a farm, gin, and gristmill, and had a little store that he looked after himself. That appellant came to his home, and they discussed business matters and the little stores about the country. That they made no trade on this trip, but some weeks after appellant returned to his home appellant wrote him in regard to the matter, and he wrote him to come, and they would talk over the matter. That he agreed to give appellant 20 per cent, of the profits to attend to the business, appellant representing to him he was experienced in this line of work, and was an experienced buyer. That appellant was to return to his home, ship some things down there to be stored, go to Dallas to buy some goods that appellant suggested were needed, and return and take charge of the store. That he gave appellant, at his reguest, $150 in money with which to purchase the goods. That appellant never returned, and had never repaid him the money. Appellant testified about as did Mr. Morris about the first trip, and says after returning home he wrote Mr. Morris about selling him a hay press. That Mr. Morris wrote him to come, and when he went that they discussed the business of managing the store. That he told Mr. Morris that he had no money, and Mr. Morris agreed to furnish the money. That the trade was that he was to ship the things he had, and they were to become the property of the partnership between him and Mr. Morris. That he was to take charge and manage the store, run a wagon, etc., and the profits were to be egually divided. That he was to go to Dallas and purchase some goods, and return, after shipping the things. That Mr. Morris gave him the $150 to buy goods in Dallas, and he went home, packed his things ready for shipment, and made a trade with a man to haul them to the depot and ship them. He took the train for Dallas, and, it being night, he went to sleep, and either lost the money, or it was stolen from him. That on the way a man sat in the seat with him, and, getting to where two railroads cross, this man said he was going to Denison. Appellant said he did not miss the money until he got to Dallas, and, remembering the circumstance about the man who sat on the seat with him saying he was going to Denison, he took an interurban ear to that point in search of the man. Upon arriving at Denison, he found a man resembling the person who sat on the seat with him, and the actions of the man made him suspicious; and, when he learned that this man was going to Durant, Okl., he also went. He said he never recovered the money. The things belonging to him, which he said were to be shipped and become part of the partnership property, were never shipped; and he did not return' to the place where he says the partnership store was to be run. These are the material facts; and, while there is other testimony in the record tending to strengthen or weaken the theories of the state or defendant, we do not deem it necessary to state it here.

In the case of Buzard v. Bank, 67 Tex. 89, 2 S. W. 54, 60 Am. Rep. 7, the Supreme Court reviews at length the decisions as to what it takes to constitute a partnership; and, under the law as announced in that opinion, the facts as testified to by Mr. Morris for the state would not constitute appellant and Morris partners; but he would only be an employs, receiving a part of the profits as compensation for his services. But do the facts as testified to by appellant raise the issue that he was a partner at the time he received the money? His contention is that there was a partnership agreement, and that he was to place in the stock certain property, go to Dallas and buy goods, and return and take charge of the store. The property he was to place in the stock was never shipped; neither did he ever return. According to his theory and under his evidence, he never did those things he contracted and agreed to do. In our opinion, if the trade was in terms as contended by appellant, it was but a conditional agreement; and the partnership would not come into existence until he had shipped the property he was to place in the business, and had returned and complied with the other conditions of the agreement. At the time he received the $150 from Mr. Morris to purchase the goods in Dallas, he knew there were certain things for him to do, certain goods he then claimed to be in his possession to be furnished, and, if he failed to do so, the agreement, if made, would be no more binding upon Mr. Morris than upon him; consequently it would not be an executed contract until he had complied with the conditions that he says he was to comply with. Consequently, even under his statement, he never became a partner with Mr. Morris, and was not his partner at the time the money was delivered to him to buy goods in Dallas. Napoleon v. State, 3 Tex. App. 524.

The court charged the jury:

“Now, if you shall find from the evidence, beyond a reasonable doubt, that the defendant and J. W. Morris entered into an agreement, by the terms of which the defendant was to run a store for Mr. Morris, and was to receive for his services in running the store a sum equal to 20 per cent, of whatever net profits should be made in the business, then the defendant was the agent and employs of J. W. Morris, and not a partner.
“If, however, you shall find that Morris and defendant entered into an agreement, by the terms of which he and Morris were to engage in business, O’Marrow to furnish certain restaurant articles, ice cream freezers, etc., and Morris to furnish the goods he then had on hand and the money necessary to run the business, each to share in the profits of the business, then, under such agreement, the defendant and prosecuting witness were partners.”

It is thus seen in the second paragraph that the court, in his charge, presented the law more favorable to appellant than we think he was entitled; for there is no evidence that appellant complied with the conditions he himself says he was to comply with. The complaint of the first paragraph copied, that it is upon the weight of the testimony, we do not -think well taken. It does not undertake to tell the jury what is the .evidence, but tells the jury what is the law, in case they find a given state of facts beyond a reasonable doubt. It is always proper for the court to apply the law to the facts; and in this charge he does not seek to give weight to any state of facts as proving or disproving partnership, but in the two paragraphs defines for them the law in the event they find a given state of facts.

3. Appellant complains of the misconduct of the jury, in that one of the jurymen is said to have remarked to another member of the jury that he was familiar with the road in Hopkins county testified to by defendant, and that it was good and did not get bad. Appellant had testified that the road was bad when he returned after the second trip. As this would not be evidence as to whether he was intrusted with the money as a partner or as agent, it would not present reversible error, not being evidence on any material issue in the case. However, the motion is not sworn to by appellant nor any other person. The county attorney filed a contest on this ground; and, as the evidence, if any was heard on this ground of the motion, is not presented to us by bill of exceptions or otherwise, we must presume the court acted correctly in overruling the motion, and, in the absence of-the evidence, we would not be authorized to review this matter on appeal.

4. The court instructed the' jury: “If you shall find that defendant and Morris were partners, or if you have a reasonable doubt thereof, then you will acquit the defendant, although you may find he misapplied and converted the money to his own use and benefit. If you shall find that defendant lost the money, or that he was robbed of same, or if you have a reasonable doubt thereof, you must acquit, although you may find that he was the agent of Morris. The defendant in a criminal case is presumed to be Innocent until his guilt is established by legal evidence, beyond a reasonable doubt; and in case you have a reasonable doubt as to the defendant’s guilt you will acquit him, and say by your verdict, Not guilty.” This presented every phase of defendant’s defense; and, as the testimony introduced by the state, if true, would support the judgment, it is affirmed.  