Facts
- Cody worked for Nausbaum & Co. hauling feed products (including cotton-seed meal) from railroad cars to the company’s storage sheds.
- Nausbaum & Co. owned cotton-seed meal that was located in a railroad car under the carrier’s control.
- Without his employer’s knowledge or consent, Cody removed twenty sacks of cotton-seed meal from the railcar and sold them to Simon & Son for $1 per sack.
- Cody transported the sacks to Simon & Son in three successive wagon trips.
- The State charged Cody with a single theft of twenty sacks, alleging an aggregate value exceeding $20 (the felony threshold).
Issues
- Whether an employee authorized only to haul property commits theft (rather than embezzlement) by diverting and selling the employer’s goods taken from a railroad car.
- Whether taking the same owner’s property in successive trips during one episode constitutes a single theft permitting aggregation of value, consistent with an indictment alleging one theft.
Decision
- The Texas Court of Criminal Appeals affirmed the conviction.
- The court held the conduct constituted theft, not embezzlement, because Cody had only limited custody for hauling and the employer retained constructive possession.
- The court held the successive trips were part of one continuous transaction; the taking was treated as a single theft of the whole load, allowing aggregation of value to support felony grading.
- The proof of multiple trips did not create a fatal variance from an indictment charging a single theft of the twenty sacks.
Legal Principles
- When an employee has only custody or charge of an employer’s property for a limited purpose, and wrongfully appropriates it, the offense is theft because the employer retains constructive possession.
- Multiple removals closely connected in time, place, source, and intent may constitute one theft; the value may be aggregated to determine the grade of the offense.
- An indictment charging one theft is supported by proof showing a single continuous taking, even if the property is physically carried away in successive trips.
Conclusion
The court upheld a felony theft conviction where an employee with limited custodial authority diverted and sold employer-owned goods from a railcar, and it treated multiple trips during the same episode as one theft with aggregated value.