Cox v. State , 81 Tex. Crim. 115 ( 1917 )

Appellant was indicted and convicted for the offense of theft by bailee and his punishment assessed at two years confinement in the State penitentiary.

The appellant hired an automobile from Ed Stevens, the owner, and while in possession of it agreed to sell it, but the sale was not consummated. It was the State's theory that the agreement to sell the property constituted a conversion of it, rendering appellant guilty of theft by bailee.

The owner of the car testified that he had agreed that the appellant might sell the car and agreed to pay him a commission to sell it. The following excerpts are taken from the testimony of Stevens, the owner of the car:

"Joe Sweeney had spoke to me about selling the machine for me and said he might sell it. This conversation occurred more than a month before the occasion in question when I rented the car to Joe Sweeney and Joe Cox. . . . Joe Sweeney said to me that he might find me a buyer for the car. I told him all right and he wanted to know how much I would give him and I told him I would give him a tip or commission, if he sold it. . . . I agreed they might sell the car. I agreed to pay them a commission for selling it. After this first conversation about selling the car, the car begun to go down hill, and I said I didn't believe I could get $150 for it at that time. Joe Cox or Joe Sweeney were present when I had the conversation just detailed. If Joe Cox or Joe Sweeney had sold the car on the occasion in question for $150 and had given me the money it would have been satisfactory with me. . . . There was no time limit set within which they were to sell the car for me, and I expected to give them a commission, if they sold it."

The evidence showed without contradiction that the appellant and his companion after hiring the automobile from Stevens offered to sell it for $150; that they did not sell it, did not receive anything for it, did not deliver it to the contemplated purchaser, but that it was returned to the owner. Appellant and Joe Sweeney hired the automobile together and acted together in attempting to sell it.

The evidence showing that the owner of the automobile had authorized appellant and Joe Sweeney to sell it, the fact that they did offer to sell it, or make a contract of sale, would not constitute a conversion of the automobile. Thompson v. State,67 Tex. Crim. 660, 160 S.W. Rep., 181; Smith v. State,45 Tex. Crim. 251; Von Sedden v. State, 45 S.W. Rep., 725.

In our opinion the evidence does not support the conviction. For that reason the judgment of the lower court is reversed and the cause remanded.

Reversed and remanded.