ROBERTS, Judge.
Hans Wells was convicted of three counts of theft, each a felony of the third degree. The court assessed punishment at 5 years' confinement (probated) and a fine of $500.
Each count of the indictment alleged that on a day in 1974 the appellant obtained and exercised control over money "from 3-W Appliance Sales Service, Inc., without the effective consent of the owner, 3-W Appliance Sales Service, Inc., and with intent to deprive the said owner of said property." The appellant argues that there was no proof of the lack of consent of 3-W Appliance Sales Service, Inc. We must agree. The only proof of lack of consent was the testimony of Ned Westmoland that he did not consent to the appellant's taking of the corporation's money.
In Easley v. State, 167 Tex.Crim. 156, 319 S.W.2d 325 (1959), proof of ownership was in question. The indictment alleged that H. E. Butt was the owner of stolen property. Butt himself testified that the owner was H. E. Butt Grocery Company, a corporation. Although Butt owned all the stock in the corporation he was not the owner of the property, as alleged. The proof failed.
In the instant case Westmoland, the appellant, and the appellant's brother were the incorporators of 3-W Appliance Sales Service, Inc. It appears that Westmoland provided the capital and the Wells brothers ran the business. The appellant used corporate funds to buy some things for himself. A certificate of incorporation was issued by the Secretary of State, which brought the corporation into existence. Texas Business Corporation Act, Article 3.04. Although Westmoland may have financed the corporation, he was not the corporation. Proof that he did not consent was not proof that the corporation did not consent.
This Court frequently remarks that it is proper and better practice to allege in the indictment that corporate property was taken from the control of a natural person who acted for the corporation. E. g., Castillo v. State, 469 S.W.2d 572 (Tex.Cr.App. 1971). Here the State chose not to do so. "It was the province of the state to . . . allege ownership, but in doing so it assumed the burden of establishing and proving ownership as alleged. The state has failed to perform that duty, and such failure requires a reversal of the case." Easley v. State, 167 Tex.Crim. 156, 319 S.W.2d 325, 325 (1959). The same is true of the duty to prove lack of consent as alleged. The trial court erred in denying the appellant's motion for a directed verdict.
The only just remedy is the direction of a judgment of acquittal. Burks v. United States, 437 U.S. 1, 18, 98 S.Ct. 2141, 2150, 57 L.Ed.2d 1, 14 (1978). See also Greene v. Massey, 437 U.S. 19, 98 S.Ct. 2151, 57 L.Ed.2d 15 (1978).
The judgment is reversed and the cause is remanded with directions to enter a judgment of acquittal.
Before the court en banc.
OPINION ON STATE'S MOTION FOR REHEARING
DOUGLAS, Judge.
On original submission, the panel reversed three theft convictions on the ground that the State failed to prove that "3-W Appliance Service, Inc.," the alleged owner, did not consent to appellant's appropriating corporate funds to his own use.
If the panel opinion were adopted, it would in effect make a corporate charter a license to steal, because it would be impossible to commit theft from a corporation.
A corporation can be an owner of property under V.T.C.A., Penal Code, Section 1.07(24), which provides that "owner" means a person and that "person" means a corporation. It is obvious that a corporation cannot testify or give direct testimony of lack of consent.
Appellant was one of three incorporators of "3-W Appliance Service, Inc.". He appropriated the corporate funds to his own personal use. There is only one way to prove lack of consent by the company and that is by circumstantial evidence. If the State cannot rely upon circumstantial evidence in such cases, one may steal when a corporation is alleged as an owner without fear of punishment.
Appellant initiated the idea of starting the appliance business and a corporation was formed for that purpose. The directors were appellant, Ned Westmoland and appellant's brother, Don Wells. Westmoland as "president" of the corporation supplied most, if not all, of the company's financing which was deposited in the corporate account. Appellant was secretary-treasurer of the company and managed the business. He drew a weekly salary. His brother Don was a vice president and was a salesman. Westmoland took no active part in the business.
The corporation was created to deal in appliances for the company and not for appellant's personal benefit. Prior to the alleged thefts, Don Wells was no longer associated with the company's business. Appellant managed the business and wrote checks on the corporate account.
On February 23, 1974, appellant issued a check on the corporate account in the amount of $3,745.75 to Yoder Motor Company to purchase a 1972 Cadillac. Westmoland gave appellant no authorization to issue the check, had no idea that corporate funds were used to purchase the Cadillac, and gave appellant no consent to purchase the Cadillac. There was no agreement between Westmoland and appellant to buy any automobile and appellant only had authority to write checks to "carry on the business properly." The certificate of title to the Cadillac was issued in appellant's name and not in "3-W's" name.
On August 8, 1974, appellant issued a check on the corporate account in the amount of $227.43 to Van Burkleo Motors to purchase a go-cart. Westmoland did not consent to the purchase of the go-cart, did not find out about it until 1975, and stated he could not "possibly think" of any need for the business to have a go-cart.
On February 7, 1974, appellant issued a check on the corporate account in the amount of $818.17 to Peace and Thorton Lumber Yard to pay for $363.26 worth of building and remodeling merchandise, among other things, previously purchased there. There was no agreement that such materials be purchased for personal use; and, Westmoland did not consent to their purchase. Moreover, to Westmoland's knowledge, none of these materials were ever used for business purposes.
This Court has held that ownership can be alleged in a corporation. In Middleton v. State, 476 S.W.2d 14 (Tex.Cr.App. 1972), Humble Oil and Refining Company was alleged as the owner and the proof showed the ownership of the premises and the mercury in question to have been in the company. The conviction was affirmed.
Easley v. State, 167 Tex.Crim. R., 319 S.W.2d 325 (1959), does not support a reversal. The indictment alleged: "(t)he corporeal personal property of H. E. Butt from the possession of Burgin Edens who was holding the same for the said H. E. Butt. * * * " The proof showed the stolen money to have belonged to the corporation of H. E. Butt. The Court held that there was a variance because the proof showed a corporation as the owner and not H. E. Butt.
Easley supports the conviction in this case.
In Carrillo v. State, 566 S.W.2d 902 (Tex.Cr.App. 1978), the Court held that water district board of directors had no authority to consent to the payment of money not made in return for goods or services for the district.
Parnell v. State, 170 Tex.Crim. R., 339 S.W.2d 49 (1959), cert. denied 364 U.S. 828, 81 S.Ct. 66, 5 L.Ed.2d 55 (1960), was an embezzlement case. A crucial element was whether money was taken without consent of the owner. The Court held that a majority of the board of directors of a corporation could be guilty of embezzling corporate funds. In Lewallen v. State, 166 Tex.Crim. R., 313 S.W.2d 293 (1958), this Court held that directors of a corporation could not ratify embezzlement from a corporation by acquiescence.
In Giles v. State, 97 Tex.Crim. R., 263 S.W. 289 (1924), the defendant, the cashier and one of the five directors of the Park Springs bank, absconded with certain of the bank's assets. On appeal Giles contended that, as a director of the bank, the State failed to prove his lack of consent. This Court rejected that contention, stating:
". . . We attach no importance to appellant's contention that it was necessary to prove his own consent to the abstraction of the bank's money in order to make out a case of guilt. The bank was a corporation, and each of the other four directors testified that the board of directors as such had given appellant no consent to abstract the funds of the bank, and that each of them as individuals gave no such consent. This sufficiently showed such abstraction as to violate the law. United States v. Harper (C.C.) 33 Fed. (471) 484; Breese v. United States, 106 Fed. (680) 685, 45 C.C.A. 535."
Giles is authority for upholding appellant's conviction in the present case.
The case of Connelly v. State, 93 Tex.Crim. R., 248 S.W. 342 (1923), is also in point. There it is stated:
". . . (I)n the first count in said indictment appellant was charged with embezzlement of $600, the property of the Citizens' National Bank of Sour Lake, Tex.; in the second count he was charged with embezzlement of $600, the property of Ambrose Jackson. The court submitted to the jury appellant's guilt as predicated only upon his embezzlement of the property of said bank. Complaint is made that the want of consent of said bank is not made to appear in the record. We are unable to assent to the soundness of the contention. The president of the bank testified that neither he nor any of the bank officials gave to appellant permission to embezzle, misapply, or appropriate $600 of the bank's money. Appellant was cashier of said bank at the time of the alleged offense, and $600 was turned over to him in his said capacity as an officer of the bank, and it appears from the record without dispute that he did not place said moneys with the other money of the bank, and that no entry of such deposit was ever made by him. Thereafter, and upon discovery of the irregularities, appellant was discharged from said position, and, upon investigation of the facts concerning the deposit of said money, the bank paid to Mr. Jackson, the depositor, the sum of $600. We think the testimony sufficiently showed the want of consent on the part of the alleged owner to the misappropriation by appellant."
Further, while the lack of consent on the part of the corporation could have been better developed, the lack of consent was sufficiently proved by circumstantial evidence. See Garner v. State, 51 Tex.Crim. R., 105 S.W. 187, 188 (1907). See also, Kirvin v. State, 575 S.W.2d 301 (Tex.Cr.App. 1978), and Taylor v. State, 508 S.W.2d 393 (Tex.Cr.App. 1974).
For the above reasons, the State's motion for rehearing is granted, and the judgment is now affirmed.