De Gaultie v. State

Citations

• 31 Tex. 32

Syllabus

<p>Article 772 of the Penal Code reads as follows: “ If any carrier, to whom money, goods, or other property shall have been delivered, to be carried by him;, or if any other person, who shall be intrusted with such property, shall embezzle or fraudulently convert to his own use any such money, goods, or property, either in the mass, as the same were delivered, or otherwise, he shall be deemed guilty of theft, and shall be punished as prescribed by articles 756 or 757, according to the amount of the value so embezzled or misapplied.” (Paschal’s Dig., Art., 2423.) Held, that where money ¡was delivered to the wife of the accused, to be carried to a third party, which money the husband converted to his own use and failed to pay on' demand he was guilty of theft within the meaning of this article.</p> <p>But the indictment having charged that De G. stole the money from the “person” of B., proof that the money was delivered to the wife in New Orleans to hand to H. in Houston does not sustain the charge of theft from the person.</p> <p>The facts only constituted a breach of trust at common law; being a purely statutory offense, the allegata and probata should agree.</p>