Fleischman v. State

MORROW, Presiding Judge. The appellant leased from Greenberg a forty-acre tract of land with improvements. The lease was in writing, and by its terms the appellant acquired the right to use and occupy the premises during the year 1920. The State’s theory and testimony is to the effect that the appellant disconnected from the barn on the premises “five joists timbers of the value of fifty cents each and three boxing planks of the value of fifty cents each” and that he appropriated them to his own use. The appellant’s theory and testimony is that he purchased from Greenberg an old barn which was also on the premises, and that the lumber, which is the subject of the controversy, is a part of the oid barn. It was conceded by the prosecuting witness that the old barn had been sold to the appellant. Appellant was living upon the premises ; and there were no reservations in favor of the prosecuting witness contained in the' lease. It was stipulated that appellant, at his own expense, should keep in good repair the buildings and barns upon the premises. The ownership was laid in Greenberg! The appellant requested, and the court refused, an instruction to the iffect that if the appellant, at the time of the commission of the alleged *261 offense, had the care, control and management of the barn from which the timbers were charged to have been taken, a conviction could not result. The State concedes that á reversal should result from the refusal of this instruction. The instruction embodies a correct legal proposition and should have been given, had it been called for by the fact. Frazier v. State, 18 Texas Crim. App., 434. In the case before us, the property was under the care, control and management of the appellant. This was not disputed. He had leased it for a year; he was in possession of it, entitled to the use of it, was paying rent for it, and had obligated himself to keep the buildings in repair. He was the owner within the meaning of the statute. Article 1335, prescribing the circumstances under which one may be convicted of theft by taking his own property, does not embrace the prosecution like the present one. As related to criminal prosecution, the facts appear to be novel. If a prosecution can be predicated upon them, it would seem to come under article 1348 of the Code, defining theft by bailee. (See Branch’s Ann. Tex. Penal Code, Sec. 2522; Lee v. State, 81 Texas Crim. Rep., 129.) The premises were leased or hired to the appellant. From the standpoint of the State, the pieces of timbers described in the indictment were a part of the barn, that is, a part of the realty and were detached by the appellant, thereby becoming personal property. Conceding this, the property was still under the care, control and management of the appellant. His possession was exclusive. If he made use of his possession to convert the property, as contended by the State, his offense, if any, would seem to come under the statute, which provides that: “Any person having possession of personal property of another by virtue of a contract of hiring or borrowing, or other bailment, who shall, without the consent of the owner, fraudulently convert such property to his own use with intent to deprive the owner of the value of the same, shall be guilty of theft.” (Art. 1348, Penal Code). We, in the case of Lee v. State, supra, cited authorities and discussed in some detail the term “bailee.” As the term is applied to personal and not to real property, we are not certain that, under the facts in the present case, a criminal offense was committed, conceding the testimony of the State to be true. The owner had protected himself against any depredations by taking the written obligation of the appellant to make repairs, and this obligation was a protection against losses by reason of detaching the planks from the barn. Appellant was under contract to replace them. We are clear, however, in the opinion that the appellant is not guilty of the offense charged in the indictment, which is ordinary theft, that is, he is not guilty under Article 1329 of the Code, in which theft is thus defined: “ ‘Theft’ is the fraudulent taking of corporeal personal property belonging to another from his possession, or from the possession of some other person holding the same for him, without his consent, with intent *262 to deprive the owner of the value of the same, and to appropriate it to the use or benefit of the person taking.” From what we have said, it follows that the judgment should be reversed and the cause remanded, and it is so ordered. Reversed and remanded.