¶1 on rehearing.
¶2 June 26, 1918.
¶3 The evidence failing to sustain the conviction for embezzlement of money, the motion for rehearing should be granted.
¶4 Mrs. Annie Richardson negotiated with Mr. Taylor for the purchase of an automobile. The terms of sale, namely, $150 cash and $200 in notes payable in monthly installments of $25 each, secured by a mortgage on the property, were agreed upon. Taylor, after consulting his attorney, declined to make the sale and take the note of Mrs. Richardson because he was advised that she being a married woman could not legally secure him. Subsequently, in conversation with Mrs. Richardson appellant agreed to help her get the car and fix the notes.
¶5 She testified that pursuant to this agreement she drew from the bank $150, which she handed to appellant, who was standing near the door of the bank. Appellant at once bought the car from Taylor, paying $150 cash and executing his note for $200, payable in monthly installments of $25 each and secured by a mortgage on the car. The property was at once put under the control of Mrs. Richardson; she telephoned the garage and it was sent to her. She used it for some days, placed her number upon it and registered it in her name. Appellant and others taught her to drive it. He told her to be careful or she would not have it long—would tear it up. While it was in her possession he borrowed it from her for a specific purpose with the definite statement that he would return it to her at a certain hour the same day. He failed to return it but made use of his possession to sell it back to Mr. Taylor, cancelling the note and receiving $140 from him. Mrs. Richardson placed her claim against appellant in the'hands of an attorney for the recovery of the car, and in the alternative to recover the money she had turned over to appellant with which to buy it. Appellant’s testimony was to the effect that he did not buy the car for Mrs. *616 Bichardson but. on his own account. That at the time she claimed to give him $150 she gave him but $90, $65 of which she owed him and the remainder she left with him to prevent it being borrowed from her. ■He used such money as she did deliver to him in paying $150 on the car, supplementing it, he says, with other funds of his own.
¶6 Under the indictment and the charge of the court, the verdict of the jury and the conviction rested upon the proposition that appellant diverted the money delivered to him by Mrs. Richardson as her agent to his own use. To convict him the State assumed the burden of proving that Mrs. Richardson delivered him money for a specific purpose and that he diverted it therefrom and appropriated it to his own use. If there was no agency, there could be no embezzlement of the money. Whatever sum of money she placed in his possession, according.to the undisputed evidence, was used in purchasing the automobile. This use of it was in accord with the instructions which the State claims that Mrs. Richardson gave to the appellant. If her money came into his possession by virtue of his employment as an agent or employe of Mrs. Richardson, the purpose of the agency or employment was the delivery of the money to Taylor in part payment for the automobile. From every viewpoint of the State Mrs. Richardson furnished the money to buy the automobile under an agreement in advance that it should become her property. In law it became her property, and in fact it was put under her control, in her possession and recognized by her and appellant as her property. Appellant borrowed it, coming in possession of it as a bailee, and under article 1348, P. C., may have been guilty of theft of the automobile. He is not shown by the record to have been guilty of embezzlement of the money.
¶7 It is the opinion of the writer that the motion for rehearing should be granted, the affirmance set aside, and the judgment of the lower court reversed and the cause remanded.
¶8 Reversed and remanded.
¶9 PRENDERGAST, Judge, dissenting.