Appellant was indicted for embezzlement of certain goods, the property of Jacob Bernheim and Nathan Jtedlick, doing business as copartners under the firm name of S. Jacobs, Bernheim & Co. Appellant was employed by the firm in the city of Galveston, as drummer for the sale of goods, and the articles alleged to have been embezzled were the sample goods furnished him by the firm, and consisted of quite a lot of gentleman’s clothing. These goods were selected from their stock by direction of S. Jacobs, Bernheim & Co. in the city of Galveston, and during the time they were being selected defendant was in and out of the store and examined them. After they (the samples) had been selected, they were packed in trunks. Appellant was to act as drum*228mer and sell goods in Southwestern Texas, and Luling was the point to which these samples were to be shipped by rail. At that point appellant was to leave the railroad and take to the dirt roads, in representing the house of S. Jacobs, Bernheim & Co. as their agent for the sale of the goods. After the goods were packed in trunks as aforesaid, at the request of appellant, Nathan Bedlick, one of the members of the firm, went to the depot in Galveston and '"shipped the trunks to Luling, paying the excess in weight and receiving checks on defendant’s ticket for the trunks, which checks he delivered to defendant in Galveston. Defendant sold the entire stock of samples to a mercantile house in Laredo, Texas, and never accounted for the same to S. Jacobs, Bernheim & Co.

It is insisted that if any offense was committed by appellant it was not committed in Galveston county, and that hence the criminal -district court of said county had no jurisdiction to try and determine the same. The position assumed is that the goods were not actually delivered by the firm to defendant, and that they did not come into his possession as agent in Galveston county; that the delivery and possession in said county was only constructive, if a delivery to him of the checks for the trunks at Luling, their destination, could in any manner be called a delivery and possession of the property; that Luling was the point in fact at which the trunks were to be delivered and his possession and agency to commence.

-Upon this point the learned trial judge instructed the jury: “If the property was actually delivered into his possession, or if it was shipped by his direction or with his knowledge and approval to another point by rail, where the defendant himself in his agency and employment was going, and checks taken therefor and delivered to him in Galveston by virtue of which defendant controlled the possession of the property, it is alike in legal effect, and no further act was necessary to make complete in him the possession and authority to"control the property for the purposes of his agency and employment,” etc.

This was a correct statement of the law of the case. There can be no question, in our opinion, that defendant’s possession and control of the goods wTas complete, under the circumstances stated, in "Galveston county. By selling the checks for the trunks to a third party in Galveston he certainly could have transferred the title and right to said third party to receive and demand possession of them ' at Luling; and we imagine that the checks would have entitled him "to demand possession of the trunks in Galveston before they were ■ shipped to Luling. We are of opinion the venue of the offense was *229properly laid in Galveston county. The property came into his possession in Galveston county as agent of the firm. (Penal Code, art. 786; Cole v. The State, 16 Texas Ct. App., 461.) Under the facts stated, appellant could have been tried for embezzlement in Galveston county, or “ in any county in which he may have taken or received the property, or through or into which he may have undertaken to transport it.” (Code Crim. Proc., art. 219; Reed v. The State, 16 Texas Ct. App., 586; 62 Cal. 139.)

By the indictment the crime is alleged to have been committed on the 22d day of June, 1884; the indictment was filed the 14th day of July, 1885. An indictment for embezzlement under our statute may be presented within three years from the commission of the offense, and not afterward. (Code Crim. Proc., art. 199.) No question of limitation was raised or attempted to be raised by the evidence on the trial, and yet it is insisted that the charge of the court is fatally defective in not instructing the jury in respect to the period of time to which they should limit their investigations,as to the commission of the offense.

We have time and again held that it was unnecessary to charge upon the limitation within which an offense could be prosecuted, if there was no issue or question of limitation raised by the evidence in the case. (Vincent v. The State, 10 Texas Ct. App., 331; Hay v. The State, 11 Texas Ct. App., 32.)

One fatal error, however, is pointed out in the record, which will, necessitate a reversal of this judgment. As before stated, the individual partners composing the firm of S. Jacobs, Bernheim & Co., were Nathan Bedlick and Jacob Bernheim. Whilst the record shows that Bedlick appeared and. testified that he had not given his consent to the misapplication, appropriation and conversion of the goods by defendant, no such want of consent was shown so far as the other partner, Jacob Bernheim, was concerned. His non-consent was also an essential matter to be proven by the State, and until that was proven the case was not made out. This was made specially necessary because the State proved herself, by the witness Benavides, to whom the samples were sold, that defendant told him he had a letter of instructions from S. Jacobs, Bernheim & Co. to. sell the goods, and there was no direct or circumstantial proof that "Jacob Bernheim did not so instruct him.

For this omission in the proof the evidence is insufficient to sup-, port the conviction, and the judgment is therefore reversed and cause remanded.

Reversed and remanded.