Black v. State (4 S.W.2d 977, 1928)

MARTIN, J.

Offense, theft by bailee; punishment, two years in the penitentiary.

The sufficiency of the evidence is questioned. The prosecution grew out of a transaction in which prosecuting witness delivered. to appellant $100 as earnest money on the purchase of a house and lot in San Antonio, which witness contracted to purchase from the owner through appellant as agent. No deed or possession of the premises under contract was ever delivered to witness, and it was proved that no part of the $100 was ever returned to witness. The evidence is not entirely clear, and the facts do not seem to have been fully developed. Some of the evidence is sharply conflicting. The .following facts, however, seem undisputed:

(1) That appellant had the property listed for sale as .agent.

(2) That he contracted same as agent. to witness by an instrument in writing, which contained, among other things, stipulations, which, in substance, provided that the contract was to be consummated within 30 days, provided title was good and that failure to perform by buyer entitled seller and agent to the $60 then put up as earnest money with appellant.

(3) That subsequent payments on, the earnest money were made until the total amount was $100, the ■ last of these being made on June 24,1926.

(4) On July 24, 1926, appellant wrote witness:

“I am ready to proceed with our contract to close sale to you of property located at 1014 Delaware street. * ⅝ * Phone me Mission 1631, or write just what you want to do about the deal.”.

(5) Witness through his attorneys on July 26, 1926, replied to the above letter, in part, as follows:

“There is really nothing to say about- the matter. It strikes us that you have in your possession $100 that belongs to Mr. Shields, and it is rather a difficult task to pry you loose from the money. * ⅞ ⅜ Therefore, we will give you to July 29, 1926, to refund this money to us or to Mr. Shields, and, in case you fail to do so, we will try to have the authorities take a complaint against you for swindling.”

The appellant had conducted the prosecuting witness to the owner’s local representative in San Antonio who promised to get a definite .answer from the owner, who appears to have been a nonresident, within two or three days. The local representative was not used as a witness by the state. Apparently while appellant was making an effort to get the property for witness, negotiations were broken off with a threat of prosecution. Under terms of the contract, appellant had a right to retain the money in question if the buyer defaulted.

It has been said:

“Mr. Greenleaf says: ‘Where the goods were taken under a claim of right, if the prisoner appears to have had any fair color of title, or if the title of the prosecutor he brought into doubt at all, the court will direct an acquittal, it being improper to settle such disputes in a form of process affecting men’s lives and liberties or reputation.’ ” Evans v. State, 15 Tex. App. 38.

“Where the taking is open and under a claim of right, the question of title should be settled in a civil suit. Seymore v. State, 12 Tex. App. 391.” Branch’s P. C. p. 1337.

There is some disputed incriminating testimony not herein recited, but the above apparently uncontradicted facts raise in ohr minds such a grave doubt as to the proved guilt of the appellant that we- are not able to give our sanction to this conviction.

It is not plain from the proved facts that appellant acted with a fraudulent intent, or that his claim to the money was not grounded upon facts which justified him in believing he had title to the money in question: Stallings v. State, 29 Tex. App. 220, 15 S. W. 716. A fuller development of the facts may show otherwise.

The judgment is reversed and the cause remanded.

PER CURIAM. The .foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

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