Rosalie Sauls v. State

In the motion for rehearing appellant attacks the validity of the indictment. It is averred in substance that appellant had possession of an automobile belonging to a named corporation by virtue of a contract of hiring with said corporation, and that without consent of the corporation appellant fraudulently converted said automobile to appellant's own use, etc. The attack made on the indictment is that a corporation could only act through its officers or employees, and that the indictment should have alleged the name of the officer or employee without whose consent the conversion occurred.

The cases cited as supporting appellant's criticism of the indictment are thought not to sustain his position. In White v. State, 5 S.W. 857, and Thurmond v. State, 17 S.W. 1098, the indictment alleged ownership and want of consent in a named company, but omitted an averment that the company named was a corporation. In Kersh v. State, 45 Tex.Crim. Rep.,77 S.W. 790, and Barnes v. State, 46 Tex.Crim. Rep.,81 S.W. 735, ownership and want of consent was alleged in the person having actual control and management of the property. We fail to perceive where Varratta v. State, 103 Tex.Crim. Rep., 280 S.W. 583, has application. DeBlanc v. State, 118 Tex.Crim. Rep., 37 S.W.2d 1024, cited by appellant seems to be directly against the contention.

It has been held in a number of cases that an indictment is good which lays ownership and want of consent in a named corporation, where it is averred that the concern named is a corporation. The holding has usually been accompanied by a suggestion that on account of the difficulty of making the necessary proof, the better practice is to aver ownership and want of consent in the special owner. See Osborne v. State,93 Tex. Crim. 54, 245 S.W. 928; Houghton v. State,116 Tex. Crim. 70, 32 S.W.2d 837; Kitchen v. State,124 Tex. Crim. 358, 62 S.W.2d 144; Modica v. State,94 Tex. Crim. 403, 251 S.W. 1049; DeBlanc v. State,118 Tex. Crim. 628, 37 S.W.2d 1024. Under authority of the cases last cited the criticism of the indictment must fail.

In the absence of the facts proven upon the trial we assume that the averments in the indictment were sustained.

The motion for rehearing is overruled.

Overruled.