#### SHERMAN v. STATE.

No. 16085.

Court of Criminal Appeals of Texas.

June 14, 1933.

Wright Stúbbs and Emmett Shelton, both of Austin, for appellant.

..Lloyd W. Davidson,- State’s Atty:, of Austin, for the State.

CHRISTIAN, Judge.

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

Mary L. Shepherd was the owner of twenty shares o'f stock in the North Texas Building & Loan Association, having an aggregate value of $1,148. On the 26th of October, 1931, she delivered her stock to appellant under an agreement whereby he was to sell it and invest the proceeds for her in Corporate Trust shares. At the time of delivery, appellant stated to Miss Shepherd that he was. a representative of the., Corporate Trust shares, and that he. would'deliver Corporate Trust shares of' stock to her on November 15, 1931. Certificates of stopk in other corporations were also delivered to appellant by the *489Injured- party.' After delivering her stock to appellant, Miss Shepherd advised: the North Texas Building & Loan Association not to transfer, her stock, as she had. reached the conclusion. that appellant was hot trustworthy. Later, after satisfying herself that appellant was a proper person to sell her stock and invest for her in Corporate Trust shares, she.-advised;the company to transfer the stock to appellant. This was done, and thereafter, on January 9,1932, appellant sold the stock and convérted the proceeds to his own use and benefit. At no time did he invest the proceeds in Corporate Trust shares. Without setting them out, the circumstances are sufficient to show that appellant formed thé intent "prior to the sale of the injured., party’s stock to convert the proceeds to his' own use and benefit. Approximately a month after "he had'.sold the stock and converted the proceeds, appellant advised the injured painty that he had not sold her stock. He stated to her, in effect, that Corporate Trust shares were going down in value, and that he did-not think it was wise to invest in such shares. Again, he stated- that he had $8,009 that he was going to invest in a business in Austin.He advised Miss Shepherd to authorize him' to sell her' stock 'arid'invest the proceeds in his business, declaring that she would receive a monthly income from her investment. At this time the injured party did not know that appellant had already sold her stock .and converted the proceeds.' After some persuasion-, she agreed to appellant’s plan, and delivered to him the balance of her stock in various corporations, aggregating in value. $7,000. Appellant .sold all of the stock, and .converted the proceeds to his own use and benefit.

Appellant contends that the indictment fails to sufficiently set out the capacity in. which he was acting. It was averred in the indictment that appellant was the agent of Mary L. Shepherd,'a private person. Moreover, it was alleged that the property in question had come into appellant’s possession and was underbids care by virtue of his employment as such agent. The capacity in which the accused was acting for his principal when the property came into his possession must be alleged in such manner as to bring it within the terms of the statute. The allegation that appellant was the agent of Mary L. Shepherd, a private person, is an allegation of a capacity named in the statute, and is therefore sufficient. Miller v. State, 88 Tex. Cr. R. 69, 225. S. W. 379, 12 A. L. R. 597. We have not undertaken to set out the indictment in detail.

The evidence is deemed sufficient to support a conviction for embezzlement. See Allen v. State, 119 Tex. Cr. R. 592, 43 S.W.(2d) 586; Landrum v. State, 73 Tex. Cr. R. 580, 166 S. W. 726; Henderson v. State, 55 Tex. Cr. R. 640, 117. *S.*W. 82

Appellant contends that the-agreement-. Miss Shepherd had with him on February. 13th- established the relationship of debtor and creditor, his position being that it was agreed by the injured party that he might use. the - proceeds from the sale of the stock. to invest in.his ^business in the city of Aus-.’ tin. In other words, appellant takes the po-' sitiop that under-the agreement last men-, tioned the relation of debtor and creditor; was established, .rather than that of princi-' pal and agent. . At the time the agreement of ' February 13th was made, appellant had al-, ready sold.the stock described in the indict-' ment and embezzled the proceeds. Thé injured party did" hot know this fact. Under1 her original agreement - with .appellant, he' was to sell the stock and invest the proceeds in Corporate Trust shares. Appellant had no business in the city of Austin. So far as the record reflects 1⁄81⁄8 matter, the representations made to the injured party were false.-. We deem the. transaction of February 13th. as constituting a mere incident to the carry- ¡ ing out of a fraudulent scheme on the part of appellant. Hence such transaction would not render the relation of the parties one of creditor and debtor, rather than of principal and of agent, so as to preclude a conviction for embezzlement. Stecher v. State of Wisconsin, 202 Wis. 25, 231 N. W. 168, 70 A. L. R. 203.

The next contention is that the proof fails to support -the allegation in. the indictment that' appellant embezzled the stock. It is appellant’s position that, if the stock was sold pursuant, to the agreement with the injured party, the proceeds, and not the certificates of stock, were embezzled. We have, heretofore stated that the circumstances are deemed sufficient to show that appellant formed the intent to embezzle the proceeds, prior to the time that he sold the stock. Not- - withstanding that appellant may have had authority to make the sale of the stock al-, leged tq have been embezzled, yet, if he sold the same with the formed intention to defraud the owner and to convert the proceeds' to his own use and benefit, he is as much-guilty of embezzlement of the stock as if he had ho authority to make such sale. Leonard v. State, 7 Tex. App. 417; Henderson v. State, 55 Tex. Cr. R. 640, 117 S. W. 825. We quote from 16 Tex. Jur. p. 351, as follows:

> “Sometimes one who has sold property en-, trusted to him for sale and absconded with the proceeds, on being accused of embezzle-, ment of the proceeds of the sale, will defend on the theory that what he embezzled ■ was, the property itself, and vice versa. It seems' that this is largely a question of intent. has been said that' if at the time of the sale the accused had the intent to appropriate thé proceeds, he is guilty of embezzlement of the article, but-'that if the intent to appropriate them" develops after the property hqs" been *490said he is guilty of embezzlement of the proceeds of the sale.

> “The reason for this rule is that, if it were to be held that only the proceeds of the sale were embezzled in such circumstances the agent could sell valuable property for less than fifty dollars and thus by his own act make of a felony a misdemeanor; or, if he should transfer it in the form of a gift to secure some benefit to himself, he would not be guilty of any crime at all. This view would lead to such absurdity as to make its adoption impossible.”

A careful examination of appellant’s contentions leads us to the conclusion that error is not presented..

The judgment is affirmed.

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.