#### REINHARDT v. STATE.

No. 15401.

Court of Criminal Appeals of Texas.

Dec. 7, 1932.

J. J. Collins and R. W. Eairehild, both of Lufkin, for appellant.

Dloyd W. Davidson, State’s Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is embezzlement; the punishment, confinement in the penitentiary for two years.

We quote the charging part of the indictment, as follows: “C. H. Reinhardt on or about the 10th day of November A. D. One Thousand Nine Hundred and Twenty Eight and anterior to the presentment of this indictment, in the County of Polk and State of Texas, did then and there unlawfully and when he was then and there the agent and employee of the copartnership known as Josey and Adams, composed of John Josey and S. E. Adams and the said C. H. Reinhardt did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of the said Josey and Adams, or either of them, 2442 pounds of seed cotton.of said Josey and Adams, to-wit, 2442 pounds of seed cotton of the value of One Hundred Forty Six & 52/100 dollars which said property had come into the possession and was under the care of the said C. H. Reinhardt by virtue of his said agency and employment.”

Appellant predicated a motion to quash the indictment, upon the ground that it was averred that he (appellant) was a member of the copartnership known as Josey & Adams; his position being that that part of the in-'dietment reading, “composed of John Josey and S. F. Adams and the said C. H. Reinhardt,” constitutes an allegation that the three parties named composed the copartnership. It is observed that immediately following the words, “the said O. H. Reinhardt,” the indictment reads, “did then and there fraudulently embezzle,” etc. We think it is manifest that it is not charged that appellant was a member of the copartnership. The opinion is expressed that the motion to quash was properly overruled.

The transaction alleged in the indictment rwas positively identified in the evidence. Appellant was the manager of a gin owned by John Josey and S. F. Adams. I-Ie had authority to buy seed cotton, issue receipts, and handle funds of the business. On November 10, 1928, appellant ginned 2 hales of cotton in his own name. The bales were numbered 725 and 729. The seed cotton going into these *102bales *aggregated 2,442*pounds and was oí the value of $146.52. Appellant sold these 2 bales of cotton on the following day to J. W. Cobb. A witness for the state testified that the seed cotton mating up the bales belonged to the partnership of Josey & Adams. Appellant's brother testified that the cotton belonged to appellant, having been raised by appellant on his father’s land. He testified further that he hauled the cotton to the gin for appellant, saw it ginned, and thereafter carried the two bales of cotton to Mr. Cobb’s place, where it was sold. Mr, Cobb testified that this witness in fact delivered the cotton to him. Appellant’s brother said, further, that appellant raised 51⁄2 bales of cotton, but gave his father ?1⁄2 bales for rent, keeping for himself 3 bales. Appellant did not testify.

In addition to the testimony relative to.the cotton charged in the indictment to have been embezzled by appellant, it was shown by the state that more than $200 worth of seed cotton had been bought by appellant with funds belonging to Josey & Adams, and that the firm had never received any credit for cotton ginned at the gin that year. Several employees of the gin had authority to issue checks and buy seed cotton. On certain occasions extra men were employed. The record appears to be silent as to whether there was any seed cotton on hand at the time appellant’s employment ceased. J. P. Chadwick, who worked at the gin, and who had authority to issue checks, testified for the state that during the time appellant worked at the gin he did not see appellant gin any cotton that belonged to Josey & Adams, except that which went into the bales Nos. 725 and 729, the two bales sold by appellant to Mr. Cobb. The gin frequently sold seed cotton to farmers.

If the testimony relative to bales 725 and 729 should be eliminated, the evidence would be insufficient to support the conviction. Hence the court erred in declining to instruct, the jury to acquit appellant if they believed the 2 bales of cotton sold to J. W. Oobb were the property of appellant. Timely and proper objection to the charge, calling attention to the defect mentioned, was interposed by appellant. Also appellant presented a requested instruction covering the subject. As heretofore pointed out, the transaction alleged in the indictment was positively identified in the evidence. The evidence, however, was sharply conflicting, as above shown, upon the issue as to whether the two bales of cotton numbered 725 and 729 belonged to Josey & Adams or to appellant. Manifestly, under the circumstances, the court was in error in declining to submit affirmatively the question as to whether said cotton belonged to appellant. Katz v. State, 92 Tex. Cr. R. 629, 245 S. W. 242.

The testimony shown in bill of exception No. 5, relating to a separate and distinct offense, should not be admitted upon another trial. No conditions are present warranting its reception. It sheds no light upon any issue in the case.

The judgment is reversed, and the cause ■ remanded.

PER OUBIAM.

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.