The first count in the indictment charged swindling. The second count charged theft under contract of bailment, under article 742a, Penal Code, and, omitting formal parts, alleges, that appellant “did then and there have possession of 500 bushels of Bo. 2 wheat, of the value of forty cents per bushel, and of the aggregate value of two hundred dollars, as the agent and manager of the Wichita Boiler Mill Company, a corporation duly incorporated, the said wheat then and there being the corporeal personal and movable property of Walter Parker, and the possession thereof having theretofore been acquired by the said D. J. Calkins, as agent and manager of the said Wichita Boiler Mill Company, as aforesaid, by virtue of a contract of bailment in writing, as follows, to wit: ‘Bo. 49. Wichita Boiler Mill Elevator receipt. Lb. 30,000. Bu. 500. Wichita Falls, Texas, July 14, 1893. Beceived in store from Walter Parker, bushels 500, of Bo. 2 wheat, subject to the order herein of Walter Parker, and the surrender of this receipt and payment of charges. This grain is subject to our advertised rates of storage and cleaning. Delivered in case and car load lots only. It is hereby agreed by the holder of this receipt, that the grain herein mentioned may be stored with other grain of the same quality by inspection. Loss by fire, tornado, or cyclone at the owner’s risk. [Signed] Wichita Boiler Mill Co., by W. H. Thompson.’ And the said D. J. Calkins did then and there, without the consent of the said Walter Parker, fraudulently convert the said wheat to the use and benefit of him, the said D. J. Calkins, with the intent then and there to deprive the owner thereof of the value of the same, the said D. J. Calkins being then and there the agent and manager of the said Wichita Boiler Mill Company; against the peace and dignity of the State.”
This conviction was obtained under the provisions of article 742a, Penal Code. If appellant obtained possession of the wheat by virtue of a contract of bailment, and, without the consent of its owner, fraudulently converted same to his own use, with intent to deprive the owner of the value of the same, he would be guilty of theft. Bow, the first question presented for solution is, must the accused be a party to the contract of bailment? Let it be supposed that the contract by which the bailment was created was made, as it undoubtedly was, by W. H. Thompson, and that the accused had no connection with it, not being agent and manager of the mill company, and did fraudulently convert the wheat to his own use, etc., would he, under this state of case, come within the provisions of said article? Suppose that a con*254tract of bailment had been made by Thompson, and that the accused knew nothing of this, and, being agent and manager of the mill, converted it to his own use, would he be guilty of theft under said article? Suppose he knew of such contract, would he be guilty if he had converted it? We must answer this question in the negative. And we must answer the first and main question in the affirmative; that is, to bring the accused within the provisions of said article, he must be a party to the contract of bailment. If Thompson made the contract with Walter Parker by virtue of which the wheat was bailed to the mill company or to himself, appellant would not be the bailee of Parker, but the company or Thompson would. And if appellant was agent and manager of the mill company, and converted the property to his own use without the consent of the company or its authorized agent, he might be guilty of embezzlement of the wheat. But in such a case the indictment must allege the real facts, and especially negative the consent of the owner of the property, viz., the mill company. This indictment proceeds upon the theory, that if a party should be in possession of property which has been bailed to another, whether himself or not, a fraudulent conversion by such person would be a theft from the bailor. This is not a correct construction of said act. It is seen that the indictment alleges that appellant was in possession of the wheat, and that he acquired possession thereof by virtue of a contract of bailment, etc.; but the indictment sets out, and it shows beyond question, that such contract was made by Thompson, and not by appellant, and by Thompson for the mill company. Bor does the indictment allege that appellant, as agent and manager of the mill company, signed Thompson’s name to the contract. The contract is signed, “Wichita Boiler Mill Co., by W. H. Thompson.” We are of opinion that the indictment is inconsistent, vague, conflicting, and fatally defective.
The judgment is reversed, and the prosecution dismissed.
Reversed and dismissed.
Judges all present and concurring.