*1 Busby v. Thе State. tion, upon that base the proposition further that he proposition fear or terror. of through shot grades homicide our statute are for as a beneficent a provided very purpose, legal guide to the jury to be accorded appellant for a assessing punishment homicide. The books full of authorities not holding grade presented should, evidence Now this charged upon. decision eliminates doubt every upon possible proposition case where every ap- self-defense, then pellant’s suggests the court must presume that he was falsehood about in self-defense, telling shooting upon base another presumption was shoot- presumption evidently fear through or terror. Whenever swears ing that he shot deceased because he feared an to his injury from an assault person con- deceased, or committed there templated is element of appre- hension and fear that blow probable prompts'the deceased, that kills this is not the kind of fear which certainly manslaughter based. stated, If as case where self-defense so, every is relied the issue upon, To this manslaughter suggested. proposition I enter my dissent. think I involved in record were questions all properly treated and court, treated accurately original opinion it would be too to review the other questions, above, tedious stated relied upon now for express reversal thereof. So I the above views bеlieving, thereon.
A. S. v. The State. No. 3438. Decided March 1907. Money—Indictment—Repugnancy. —Misapplication of Public 1. prosecution misapplication public money, In a for and conversion of there charged repugnancy because indictment was no of the the defendant was an officer officer; employee government being clerk and such the assistant agent agent penitentiary; and subordinate of financial financial besides quash made after the verdict the motion to and came too late unless there repugnancy in the indictment. an absolute —Same—Evidence, Checks as Evidence. 2. public Upon misapplication funds, permitting for trial there was no error in checks were introduce turned over to the the State to bank and collected by it. of Check. 3.—Same—Evidence—Endorsement public funds, misapplication prosecution for there no error payable permitting introduction evidence of checks which were made agent officially, and endorsed defendant to the financial the funds the State. were to show Testimony. —Same—Evidence—Rejecting public misapplication Upon funds there was trial of no error to refuse charged goods which were reference the de- fendant. Barred not Evidence. 5.—Same—limitation—Evidence—Items funds, public Upon misapplication where items were trial intro- questioned limitation, barred duced 51 Grim.—19. Yol. _ 51 Texas Criminal disregard all such items so barred the statute have bеen instructed years of three limitation. *2 —Same—Books—Evidence—Supervision and Control 6. Defendant. public misapplication Upon funds, in of books offered trial for a kept by against supervision him, or defendant must be shown to have been under his direct control; proof unless other is offered that said books were and original properly kept of and that were books entries. —Evidence—Judgment in in Civil not Evidence Criminal Case. Case 7. funds, public Upon misapplication it was error in trial for of admit against defendant, judgment in in a case the rendered civil which agent penitentiaries plaintiff of and the financial and the of Texas was State involving defendants, the defalcation of his and the defendant were bondsmen compromised defendant, public which 'such suit was and a funds and the suit, including judgment by defendants rendered the the consent proceedings. defendant; in the two the of evidence are different as rules Judge, dissenting. Brooks. Rights. —Same—Materiality—Injury to Defendant’s 8. funds, public misapplication Upon of where civil a trial for a subject defendant, involving same matter was admitted the the case jury evidence, the evidence showed that and the court instructed etc., subsequent defense, default, be no settlement would the defendant rights although injuriously defendant, of the affected the there was must have other evidence same of the case. his defalcation Book-Keeper—Report. —Same—Evidence—Expert 9. funds, misapplication public Upon of there for a was no error trial expert book-keepers report appointed admitting in of two who evidence the report between defendant the State. to examine the books make of Defendant. 10.—Same—Evidence—Credit—Acts public funds, misapplication Upon there was no error in the for a trial testimony investigation to an made to admit defend- refusal of the court ant’s witness to credits, defendant had never made claim to certain show that claim; such bank books he" no meet having previously requested by of the bank account defendant. correction Evidence—Charge of Court. 11.—Same—Circumstantial funds, public misapplication of where evidence is trial for Upon ' phase charge circumstantial, should case. the court —Same—Charge of Offense—Burden of Proof. of Court—Elements 12. public funds, correctly misapplication Upon the court a trial for placed constituting offense, the burden the essential elements enumerated requisites upon before the authorized to show said to convict. —Same—Conversion—Payment—No Extenuation. 13. public funds, misapplication Upon where there was evidence trial for a conversion, repaid some of funds after bondsmen prosecution. correctly charged that this was no defense to the criminal court Court—Accounting Money—Officer. —Same—Charge Public for 14. public is shown State officer received is have rule that where The trust, on him it incumbent it his over on account by him; exculpatory obligation assumed and where in accordance with knowledge important peculiarly character within an is evidence defendant it, embodying principle duty produce proper. Court—Mixing —Same—Charge of Funds—Fraudulent Intent—Mistake. misapplication public funds, there trial was "evidence Where report the failure of a was misled bank to defendant to him that certain principal, he failed and that he collections public might funds in mingled funds such a manner" that v. The State. part, on bis not be tantamount pertinently fraud court instructed directly to his defense of mistake and innocent intent. Brooks, Judge, dissenting. from the District Court of Houston. Tried below before the Appeal Hon. H. Gardner. Benjamin from a conviction of and conversion of
Appeal misapplication public three money; penalty, years imprisonment penitentiary. opinion states the case. Edwards, Adams, Atkinson,
Johnson & H. N. and Adams for ap & The courterred the trial ad pellant. holding correctly mitted the evidence of the rendered in the civil suit of the Hill al., State v. et wherein the State sued to and his recover Hill *3 bondsmen civilly of alleged shortage Such evidence appellant. whatever, inadmissible for any purpose especially incompe prima tent to establish a facie case of defalcation or indebtedness to the Ala., 202; Britton v. penitentiary. State, 77 Vt., 457, Riker v. 35 S. Am. Hooper, Dec., 646; C. 82 v. Bradnack State 492; Hun, 37 At. Rep., Leland, v. Y. (Conn.), People 73 162 N. (25 Supp., Dunagain Stаte, v. 943); 614; 38 Texas v. Crim Rep., People Mich., 19, 93 Kenyon, C. 52 1033; Beevers, S. H. W. Rep., People v. Cal., 99 33 286, S. C. Pac. Rep., 844; 2 Black on sec. 529. Judgd., Jaedicke, See also U. S. v. 73 S., Fed. U. Rep., Stone v. 64 Rep., Fed. 671.
The trial court must charge law of the case cov presenting every defensive issue affirmative ering and not charge merely manner, where an negative especially instruction is asked presenting matter; this case the court erred in to submit to the failing evidence, wit, the issue whatever shortage shown, accounts the same was the of mistake result State, and was not intentional and oversight v. designed. Reynolds 414; Burkhard v. State, 619; 8 Texas Crim. 18 Texas App., Crim. App., 9 State, 320; State, Texas Crim. v. 9 App., Reed v. Greta Texas Crim. State, 9 434; 362; State, v. Texas Crim. App., Henry App., Jackson v. 88; State, 18 63; 15 Texas Crim. White v. Texas Crim. App., App., State, 41; State, Irvine v. 20 Texas App., Wimberly Crim. v. 22 Texas 510; State, Texas App., 181; Crim. Bond v. 23 Crim. v. App., Garza State, 317; 38 Texas Rep., Boyd State, Crim. v. 18 Texas Crim. App., Swann, State, 344; Texas, 85 Stocksbury 563; v. v. 36 701. Fla., Charles of State, On on limitation: v. 22 Texas question Wyers 261; McCall v. App., State, Crim. 14 Texas Crim. App., ques 353. On State, tion of checks evidence: Lewis 12 W. admitting Rep., v. S. of v. 22 Texas question accounting: State, 736. On Crim. Steagald 491; State, 72; Texas Drinkveter v. 16 Crim. Johnson v. App., App., 421; State, 30 28 Texas App., Texas Crim. Moore v. Crim. State, App., State, v. 8 burden of Ainsworth Texas question proof: 377. On 254; v. Leura 532; State, Dubose 10 Texas Crim. v. App., Crim. App., 292 51 Texas Criminal State, State, 12 Texas v. Texas Crim. App., 259; App., Crim. Jones 13 question Evidence, 14. On books in evidence: 2 Enc. admitting 665; Rayne Parrott, v. 12 v. 2 Taylor, Ann., 765; La. Underwood Texas, 172; Texas, v. Coleman, Townsend 18 421. Martin, Howard Assistant State. Attorney-General, On
questionof v. 14 W. Findley State, Rep., accountants: S. by expert ; Masonic 185; Lackland, Hollingsworth v. W. Lodge Rep., 10 S. 895 v. State, Ind., State, 111 indictment: Nicholas question v. 289. On 63; 317; State, Texas Rep., 23 Crim. Pisano v. 34 Texas Crim. App., v. 55 State, question S. W. 64. On mistake Rumage Rep., State, Mich., v. 54; fraudulent intent: v. 10 Jaimes People McKinney, 1064; Jackson 473; Texas 28 & Enc. of Rep., 32 Crim. Am. Eng. Law, State, State, 6 Texas Crim. 153; v. Ct. v. Rep., Bridges App., Texas 145; State, 417. Upon question Leonard v. 7 Texas Crim. App., 850. Rep., Upon Leach v. 10 Texas Ct. conversion checks: State, 3 Texas embezzled v. Ct. Goodwyn question repaying money: Ark., 715; v. 28; Noland, v. 19 S. W. Fleener Rep., Rep., criminal intent: Art. of funds and misapplication 98. On question Brooks, Texas, 62; Texas; Hemingway v. 97, Penal Code of State, 68 Miss., was convicted of HENDERSON, Judge.Appellant misapplication and his fixed at confinement money, punishment and conversion of public *4 for a term three hence this years; appeal. in the of penitentiary makes, which to the it be- legal questions appellant In order present The record is and to state case. contains lengthy comes necessary to mislead and confuse. into much that calculated Without going will summarize what is we considered to be essen- details, elaborate State; and then the defenses case, by tial features of the appellant. up by set what termed the assistant financial agent became he was of in 1899. In effect subordinate and clerk
Busk Hill, the financial agent penitentiaries, appointed M. C. Gov- W. and entered on his duties Bebruary Sayers. Appellant qualified ernor duties as such the financial agent manage His year. said same, for the and to buy supplies Busk penitentiary; affairs out and re- manufactured said penitentiary; pay sell products accounts, thereof, and to correct account keep said on moneys ceive itemized statements and disburse- receipts monthly to furnish and was to an account of His agent. duty keep every ments to financial for sold, same, or the for paid price with price and item bought and the same and sold; keep correctly, to keep the same was which of said over penitentiary, from the business accruing moneys over receipts expenditures might agent the financial excess.of him as such em- agent charged The indictment required. The State. 1V07.[ $7,500, which he had bezzlement of funds received amount for. accounted introduced three this allegation, supporting
In the evidence features, in different modes and showing receipts appellant separate distinct items or charges for. The State showed (1) unaccounted items drafts and amounts received him. These included separate about collected, vouchers sometime and beginning August, aggregating and $6,000. This includes the difference in the Great International moneys Railroad between the collected and account, Northern moneys $854.76, which before the have beеn collected reported, appears And includes ac- 17tli of the Texas and Railroad Pacific June, count, named which to have collected to said last prior appears account, And date. includes difference the Cotton Belt’s collected $856.41. and which was reported, The State showed to audit said appointed
(2) bookkeepers his term of officewas short some appellant during account it was this connection also shown these experts appellant $13,000, to have which alleged money, claimed some he was and his claim, agreed to him belonged individually, allowing they $12,000. They that he short some further stated there was some entirely were not satisfied about as $3,000 charged against this, $9,000, was indebted to the for allowing appellant, showing. which he made no office, It was also shown that term of subsequent (3) M. against principal, Hill, had been W. C. account brought
suit appellant party-defendant, That Hill made default. him asked rendered against (Hill) judgment case bond, the sureties on the appellant, the safe conduct of his office. An auditor ap- to him for executed and he case, deficit of some trying reported by the pointed rendered subsequently compromised, $6,000. This Hill; and also and his $4,200 against sureties. introduced some demand Against items—it separate proved by the State’s some challenging himself, when between bank he gave -custom was the collected, that it was not to to be be charged the bank draft to сheck *5 account, until the bank the bank on reported received moneys as then it was made him, and charge against to thereof collection items the bank made no to these particular report as that him; and office, out consequently his going they time of to up himto it However, was shown as to him. all these were wit: items, to Company......................$520.60 Lumber
Hines drafts..................... 327.00 Waterworks Dallas item Waterworks Dallas other And the 51 Texas Criminal these were not at reported collected, that while the time as collected, in fact and were a were him. proper charge against also showed that he was not required keep money bank, and he was not required at over at any particular any time; three banks, he different particular kept money Bank, Bank, wit: at the Rusk National and the Gatesville and Center Bank. That in connection he with his account for the penitentiary, account of and drew drafts kept private moneys belonging him, for the individual un- and on account of his promiscuously ; and that on a to the he was not indebted dertakings proper accounting amount; to him. State State was indebted really this connection introduced evidence a statement of accounts be- him and the tween to audit his expert bookkeepers appointed books. This statement showed that moneys, accounts. account private more business, of his than offset the account of the private State against words, In other of some him. State reсeived the benefit $26,370 funds; Walker, that this account made who out by him, and the is that a cor- succeeded it was to as suggestion agreed rect account. Walker, answered this that he knew noth- by showing State the items claimed as appellant; offsets
ing down, him, the statement amounts were and that put these and it added amounted to the offsets claimed up, by appellant the State’s account of defalcation. On cross-examination items, as to these following appears: “Q. these According your contention items that listed and you $26,000 Walker, was all A. I figured up your money? gave did not so. say
“Q. From books you gone money how much through, sir, $13,000? of Texas owe is it about A. you, No, does State $25,362.96, $26,846.18. this other amount of The first would claimed as amount is the account- my shortage by amount expert ants.
“Q. So, Texas, when left and went to you Shreveport, State owed sum of really you large of Texas ? A. I did State about it. not know anything
“Q. so could Did books tell you keep your you, whether No, sir, owed the A. owed State? I could not tell you you * * * I clerical man.” about it. am not a anything “Q. use funds for the your private ? A. Why you would make out a I time we would be report guided Every entirely called for as to how I stood. amount “Q. to be honest with the Texas, You intended State of did you? Yes, I did. A.
“Q. knew when turned over office you you You would have to Yes, books the office? A. settle sir. according “Q. books and say your did Why you reports correct, *6 Busby v. The State. so. was A. I conducted knew that unless affairs oí the officе you knew how. I never suspected I as well as there possibly anything until these came things up. at the office wrong “Q. did State’s you keep money own Why your money bank? A. I never apprehended trouble from separately any kind. I books thought source of that penitentiary I was due the show what penitentiary. “Q. do when way you business you Is that handle two men’s in the same account? up to mix them A. That was not money, men’s I did not have money. two any, seems. handling “Q. $26,000 ? A. I could Whose not tell my to save you life how that was.
“Q. tell how much money you You could had. I am A. go- accounts, two bank and I to examine these am to see ing going try and tell if I dissect these which which, can and all about I it. done as it but there is, near mighty more in that Center than money of borrowed has represented.” account when asked, “How he Further, came to have separate in bank,” funds to accounted moneys put same this wise: from the sale of his home in That he realized 1,000.00 $ Gatesville.... business at drug From the sale of 1,100.00 Gatesville.......... from the Bank on That he borrowed Gatesville his note.... 688.20 convict, Guyton................ from a named 1,100.00 Borrowed and made a profit Sold some of................ pig-iron, 800.00 the San Augustine 1,800.00 Borrowed from Bank................. the Center 1,000.00 Borrowed from Bank........................ owed 2,200.00 Brick him......................... Company from the at 1,500.00 Estimated collections drug-accounts Gatesville..
$11,188.20 in this connection that appellant It was shown entered into the brick and he and Busk, Sanders and some business others owned a plant and manufactured brick. is shown in one there place to brick owed $2,200. conсern him have claimed According statement, the brick concern owed him another According concern, the brick statement insolvent, his sworn became owed $3,871.06. All this was borrowed money. Appellant accounts that his stating for this loan by must have into it. gone The statement accounts between the Center Bank and appellant, accounts, left him due all of at said including bank $363. bank, balance, at Gatesville The account whose far as so appel- settled, shows, financial agent
lant’s account him in bank; due at the leaving nothing account Busk was due Busby $370 same some bank showed the time of turn- -in March, 1903. over the office to his own ing According account *7 Beports. 51 Texas Crimbstal [Austin» was then due $1,470.30, State which he to have appears paid. With statement, reference to the above it is shown Busby should have placed of his own banks, funds the -various conjunction with the funds, $11,188.20. State’s the sum of However, it is shown $688.20 was borrowed on a note from the bank, Gatesville $1,100 was paid. The shown to have been received from Guy- ton, also he It is says paid. nowhere shown that he is still $1,800 due San bank and this was Augustine $2,200 The paid. borrowed from the Center bank was These items would paid. amount which, deducted from the $5,788.20, $11,188.20, would leave the $5,400, amount of as all the money individual funds which went into In the bank. addition to this appellant says $1,500 he received a four salary year for that he lived years, etc., and he estimates that economically, he must have a consid- paid erable of that into the portion fund. If wе this as general estimate $1,000 $4,000 much as that would be year, more, which would show $9,400 of his individual fund him into the banks and paid by with the How, State’s if mingled money. we take the figures $26,000 account, State’s on experts showing shortage the whole and allow claim, that he could he would appellant everything possibly defaulter; still be a if $11,188.20, $4,000 he is allowed the of his this added, $15,188.20, would be and he would still owe the salary $11,000. If he $5,400 State entitled to the as actual only fund, $20,600, into the common he would owe the or if he put State $5,400 $4,000 is allowed in addition to the account of his salary, $17,000. still $9,400, which would make owe State So count there is no that he is a defaulter to the State. question on this course, if the based on the auditor’s count, judgment, the other On Hill and is a he was appellant, criterion, W. M. C. $6,000, in the sum of some which by agreement compro- defaulter $4,200. If we estimate his based on cer- shortage, was mise placed him, been collected some thirty forty items shown to have tain It be also observed may he was short some number, $200, that a was charge connection his bond. This as a for making appears Busby charged with his individual property, rendered.” In connection “extra services in a land he concedes that he lost $280 be observed that also speculation. in arrest of judgment is that motion first contention Appellant’s sustained, repugnant because the indictment and that he of the government officer it charges connection The such officer. proof employee a clerk financial and that agеnt, the assistant was called shows effect, Hill, superior. W. M. C. subordinate as such he at the and was employee responsible clerk terms here used are not neces- it that the takeWe C. Hill. W. M. be He an officer might govern- other. to each sarily repugnant v. State. also of the clerk may
ment and a clerk and A employee government. this, Besides there was no motion government. an officer late, verdict the motion was made after the and came too quash; was an in the indictment. See Pisano repugnance unless there absolute 63; v. 34 Texas Nicholas v. 23 Texas Crim. Rep., Crim. State, 55 S. W. App., Rumage Rep., an error contends that the committed permitting the checks which were turned over to the bank introduce collected, claim was embezzled anything him it was the and not the do this as checks We money. regard *8 tenable. The on whom these checks were drawn indebted parties were to the for of the penitentiary bought Busby them of goods by agent in owed for the and their penitentiary. parties money goods, was not until debtedness settled collected in money. money When the the bank came into these checks drawn through by Busby bank, it and collected was the parties by money him afterwards was an appropriation appropriation money Leach v. 10 850; State. Texas v. Gris Rep., Ct. State Atlantic, Mich., wold, 829; Per 53. con McKinney, Appellant erred in tends the court the Lee item be permitting Lloyd proven. 19, 1902, This a small item of of date shown $20, February was was that he his check for this amount on First National gave Busby Bank Rusk, says Texas. Witness he did not Ioloav what became of the check after that time. It seems that goods receipted marked at the time the check was witness paid given, had in the bank. It seems to us that money Busby was chargeable amount, was with this evidence introduced to show legitimate facie case on account of said him. If check this check prima collected, never him. was lost and was come from proof made to the of an of $7. Also an introduction item W. objection Texas, R. Mitchell of a door-sill from the purchased peni Troupe, 28, and on November the witness 1902, sent a tentiary postoffice Hill, the sill to M. payment order W- C. Financial money Agent, Texas; did Rusk, postmaster Texas. The witness was Troupe, had been never returned not knoAvwhether the order had been paid; taken from the at Rusk postoffice to him. If it not been There in this nothing objection. been so notified. Avould have Lacey $5.40. small order of R. T. there was an Also objection 1903; he furniture of Rusk of Pittsburg bought Pittsburg, February order from dated money remitted by postoffice returned, and was the defendant at Rusk never was mailed to It testi paid. it Avas This ever given nor was notification on AAdiich same ground permitted on the was admissible mony Mitchell. the Aidtness testimony was permitted. complains also further to be checks purporting two checks introduce OA-erhis objection, Mo., Louis, on the National 'of St. Company HardAvare the Simmons Austin, 51 Texas Criminal j Louis, Bank of of St. to the Commerce order of W. M. Hill. payable C. checks, Each of when offered in evidence, these endorsed on the Cashier, back to J. M. "pay Wightman, Hill, S. W. C. A. Busby, S. A. E. A.” The amount these checks was to the credit of placed account with the Busk bank. The Busby’s objection urged against these is that there is to show that tending they were checks nothing of Texas. think there is We con- belonging enough The fact that they nection with the checks show this. were made to W. M. Hill A. and endorsed Busby, officially, C. S. payable were funds of the State. suggest committed an the court error Appellant says refusing permit that he the witness merchandise from King testify bought peni- was assistant financial while tentiary Busby agent amounting twenty at the dollars, odd which he Busk the absence of paid prison There is no to a convict bookkeeper. Busby with these on this account. The court did err in charged goods the testimony. rejecting to the item introduced evidence with reference
Appellant excepted I. & G. H. Railroad. The proof collected that the amount collected by Busby reported connection shows less than he collected. actually Objection Hill was urged $854.76 limitation, was that it was barred the statute of to this *9 will be case, to be the and discussed later on when the this appears and on this reviewed. subject of the court charge to the made the book was entries upon Objection Mr. and kept by the books were that he Busby the ground and also it was testified to them, entries Mr. made never duties, of his it wаs for him discharge important in the Lubbock that man and who the books was correctly, kept kept have books him; hot hold his under he was not of position and did not appointed selection but was furnished some other or Busby’s employment for the therefore, is not condition of the and, Busby responsible official Walker, called, testified that when In this connection books. with the settlement Busby, office and settled took charge he office he identified book in Busby’s on the books based turned him of the books over to by Busby. as one the ledger, question, admitted. It was not necessary were properly the books We think he was under his supervision and bookkeeper; Busby appoint all his based on these books. The books reports control. furnished and whether the by Busby, the material made up were not, bv him under circumstances they was furnished bookkeeper record Busby testifies, We notice while admitted. were properly selection, was not of his yet it seems bookkeeper way, in a general 242 On of the record bookkeeper. page over control he had ,we drunk one and he got night, Green was put bookkeeper bis find that to be a and be trusty, mad got not permitted inside, on the back out. take him Appellant would not he says because at appellant Busby y. The State. 299 man get suitable to take him out kept trying again, Green, did not It man keep very seems that same long. some other one in the fur- office connected closely appellаnt, nished him with of a fragments directly letter written by Walker after he took notified appellant first charge penitentiary, was detected accounts. shortage
More this, than that while the not have bookkeepers may appears Lubbock, selection, were under his control. at who was when first took keeping books he made under the direc solely shows that the books penitentiary, up should have tion and even withheld the entries that gone appellant, instance, on the at his were some 800 registered books wit: there orders at the which were for sold goods locally penitentiary,-that Leonard, withheld from the books. Peo. v. 106 office, but were 617; Evidence, 2 Enc. of 666. Cal., 302, Pac., p. also Hill and to the rendered
Appellant objected rule, himself as As we understand the a valid and sureties. He and privy binding against appellant. party rendition, thereto; agreed time its present evidently on him as a to same. It not have been stated absolutely binding trial, facie prima but it was evi certainly defalcation this criminal defalcation or indebtedness to dence him of the penitentiary. Evidence, Liquors, 2 Elliott on sec. 1527. State v. Intoxicating See S., S., 436, v. H. 116 U. 29 L. Coffey 47 Atlantic Rep., (Vt.); Ed., 684. report expert also two objected bookkeepers, to examine the books and make between appointed
who were result. and to state the This objection penitentiary, Briggance. This character of testimony particularly related under the authorities. See v. to be admissible Findley seems Lackland, v. 185; Masonic 10 W. Lodge Rep., W. S. Rep., 14 S. Ind., Hollingsworth have made some to the refusal objection understand appellant We the witness Martin state he investigated permit the court *10 brick with the and that his investi- Busby company, of Mr. account made a never claim brick that showed gation not understand the witness here do pro- We for the company the books were books, and not introduced. even from the to speak poses would be to meet the legitimate testimony us this to not occur It does to the that bank effect that Wightman the Busk testimony went to the credit the brick com- of appellant, direction $1,000, by made by effort to have any was no there pany, after, so about the time or he vacat- year until correction he wanted it to his said credit on placed then office, ing of to the credit of instead the brick com- account institution. a bankrupt was then which pany, committed an error him in claims 51 Texas Criminal [Amlin, substance: “This is in a case of circum- charging jury part evidence, stantial are order to warrant a you charged evidence,” on conviction of a crime circumstantial etc. Then wholly follows, a correct on circumstantial evidence. If this was a charge evidence, case on circumstantial then the court would depending wholly have been bound to instruct the on circumstantial evidence. How- jury ever, court, stated by was not a case on wholly depending and, therefore, bound the court was not to give circumstantial all, on circumstantial evidence at charge charge given not calculated to injure appellant. relat- introduction of certain
Appellant complains items, claims, limitation, to which he were barred statute of by ing is, items of received 17th moneys by appellant prior court with reference to the June, 1901, and the moneys to said date. notice shown to have been received We by appellant prior his evidence that required keep appellant says at bank which he received on behalf any particular the money If that true he it over at time. be any particular or account; until on called on to being retain same called could June, in fact not called the 17th of 1901, account prior March, none of 1903, turned over his office on to account until he the court seems to However, to be barred. the items would appear items of received by appellant prior all of the moneys treat 1901, limitation, for the court June, as barred the statute 17th of “If instructions: find from you the following gave converted to fraudulently misapplied or that defendant time not within three any years prior own use public case, 17, 1904, you in this to wit: June of the indictment presentment con- convict for such misapplication cannot you instructed are are further you there was. In connection herewith such version, which has been called reference to item follоws: with instructed which it was claimed item, $268.25 and an item of Gibson Judge at Rusk to the de- Belt Railroad Cotton Agent was paid the differ- which the State claims was item of fendant, $270.54 and an the defendant I. & H. G. the amount paid between ence Hill, the defendant to W. M. C. reported the amount R., and R. claimed to be the dif- $221.18 item of and an M. the defendant to W. C. reported by the amount between ference the evidence may find from which you other items Hill, and any 1901, cannot you to June the defendant prior paid have been which to found con- charge upon basis of the take as the consider of the said upon any convicted cannot be the defendant viction; and admitted to con- items has been .to While evidence charges. case, as bearing with other evidence in connection you sidered by account the State of the on bearing and as of defendant intent defendant, that none still you charged the State between *11 which to found be taken as the basis matters can items or said 301 The State. v. a conviction.” This to informed not because charge objected that he not be to 17th jury prior could convicted funds received im- 1901, gave because insisted court an June, it is that instruction with how should consider reference as to proper jury said is, could look to said that were told that prior they they items, as on the as defendant bearing items on intent of the bearing defendant, is, that as we understand accounts between the State and affairs the peni- if proрosition, managing appellant to 17th its prior tentiary moneys improperly misappropriated June, bearing would evidence as 1901, legitimate that constitute matters. It occurs conduct with reference to such on after appellant’s considered that legitimate purpose might to us this was intent. question as on the jury bearing that the consider same with suggestion jury regard might defendant, state of accounts between the
reference if could use such in favor of because appellant, they only that the State was on the 17th of over-paid appellant it appeared benefit June, then such would be for the over-payment appel- course, date. his account to said Of subsequent lant reviewing accounts, look to or item thereof, could not these they prior because were instructed not they to convict appellant, expressly order do so. erred the court four essential enumerating contends constitute offense charged against appellant. order requisites taken connection with the charge, insists that said failure of He was on the proof the burden charge the court the court correct its enumeration of We believe erroneous. to constitute things necessary guilt essential appellant’s the four in this connection was to tell the proper charged, jury offense then wanting, failed prosecution requisites if either said be entitled to acquittal. charge would Said propеrly and defendant show said before the requisites jury burden on placed convict, and then if told be authorized of money charged said sum the indict received believed thereof, and that unlawfully fraudulently any part ment, same to his own then will use, you converted find him misapplied court, error that the in this connection, assigned It also guilty. told, if after the conversion accounted for or the jury that such money, said would be no payment the State good offense. We justification presume excuse, extenuation Hill and bondsmen of payment referred converted course, fraudulently said sum Of it, the thereof payment would not compelled repay before v. State, criminal Goodwyn Texas prosecution. exonerate and, Mo., 473; v. Nol Fleuner 28; State Rep., Ct. Ark., the burden placed proof complained is also It *12 51 Texas Criminal to for the money the State to accounting alleged have appellant hand, embezzled the other following charge: been “On you if should find from the evidence that a true you charged of Texas, between defendant or at the accounting of the office of Assistant close of his administration Financial Agent defendant to the State all that he was and right over paid justly the defendant would State, indebted to the not be fully guilty, then State, if or a true the defendant and between accounting State, or that there was defendant is not shown to be indebted if in his accounts, in fact no in his or shortage alleged shortage has been aсcounted and has been in fact for, account satisfactorily if it been shown that fact that existed, shown not to have has into for all the funds that came his hands he accounted to- accounts, in his then the defendant there was no shortage evidently him.” This is you acquit would not be guilty, We hold the rule to be that where a public the statement of law. trust, his it is is shown to received on account of money officer have to on him to it over the State accordance with incumbent State, Rep., In Evans 40 Texas Crim. assumed him. v. obligation where a receives 194, party money 48 W. it was held that Rep., S. manner, of in and further shown to disposed particular be property of, it then incumbent on such was not so disposed party that same criminal; other manner not some to show that it disposed character important where exculpatory peculiarly defendant, is his it. See duty it knowledge produce within the v. 6 Court Reporter, Jackson record, understand this the evidence showed three as we
Now, a defaulter to the State. In one ways distinct shown, number, 35 or 40 in instance, items are particular particular $6,000, aggregate and these amounts some received, which he nor it paid not show books do and his that he was to a party is shown Again, judg- shown. otherwise default, $4,200. the sum of The was adjudged which he ment in he was in default of the sum of $6,000, in that suit showed auditor amount, on the above and judgment was compromised the case showed accountants expert the State Again, therefor. rendered $26,000. this, answers attempts some deficit was that his his three kept that he accounts at different showing to answer Center, at and one at and all Rusk, Gatesville, one banks, one but he claims accounts, official there went into these accounts these opportunity full his funds. He show re- given his private funds acquired any private into go and where sources stated, if he is full banks, as has benefit of given amounted in the aggregate these moneys, money tangible real $1,000; from his home, $1,100, business drug his- from derived $800. These amount Now, speculation pig-iron mere estimate that this his he ought to have we add gotten State. 1907-1 and that he Gatesville, ought accounts at
$1,500 drug out of which would $1,000 a for four year years, his salary out of have saved $8,400. As heretofore would amount $4,000; altogether these funds with State’s however, mixed.his shown, money, from the to eliminate these State’s it was his funds, duty so, as the evidence was peculiarly on him to do and the burden was satisfactorily take it that all the We knowledge. within *13 circumstances, as above shown. Under $2,900, for is the accounts to show on the State and not incumbent within his power, it being State’s, can with the were mingled funds of appellant’s what private of, above complained imposed of the court it be said that the charge that the charge even if it be considered undue burden on appellant, from the State’s his funds on him to eliminate a burden placed 192, Minn., which Czizek, think not. In the State v. funds. We involved, court uses like the case very much is, in some respects, state as to thе undisputed “In view of the this language: im entirely business it was and his manner of doing of his accounts of the of the bank knew that portion material whether the officers expected to the or that he city, to his credit standing belonged amount was not on his individual that the same applied would take care and kindred evidence on these questions prop indebtedness. The if he did not know state of knew—or Defendant erly rejected. bank, his at the it was on culpable negligence part his accounts matter, to the and no excuse respect legal inform himself shown on the trial for the funds of mingling or offered to be shown knew, He or to have these known, with his own. ought the city account; on his own and as the transactions applied were being funds months, extended over and his book was many deposit with the bank meantime, no shadow of balanced excuse frequently appears and carelessness which characterized his the apparent gross negligence of the trust committed to him.”" See also v. management Sparhawk 356, Mass., and 28 Am. and Ency. Law, Eng. p. Sparhawk, Miss., State, 68 he other de Hemingway pleaded, among fenses, others; of his office were the books that he did kept by entries which tended to not know of certain the State’s case. He prove that, if an instruction the effect believed he had jury requested in the books, they no of the entries would not consider them knowledge refused, court, supreme him. The dis charge of error, says: “There was no error оf the cussing assignment this instruction. The defendant was state treasurer refusing law with the charged by custody public and as such money, records and with the official keeping showing dealings them. If did not himself receive and disburse the moneys, he and himself make the entries in the such he did not records of receipts disbursements, but another to his duties in these employed perform action, the action of that other be held to must be his particulars, cannot be evaded liability thereby except by showing his criminal - 51 Texas Criminal of the books so such other The law kept by incorrectness person. defendant, execution, trust and for its whether confided great another, or the defendant must make answer.” himself court refused to complains give charge or inadvertence: reads as “A mistake Said follows: fraudu- lent intent on the of accused is an essential element oifense part the defendant charged case; which fraudulent must be established to the intent satisfaction of doubt before beyond reasonable conviction can be had. And any should believe from the evidence you that the defendant col- although lected he all money belonging report failed to collected, he had should believe from the money although you did not account for or over to the State all the into come money possession belonging could convict still unless evidence in the you case showed that knowingly fraudulently misappropriated used the same. the failure defendant not be guilty col- lected him if it was about either brought by mistake, or in- oversight either himself advertence, other Nor would the person. *14 if the failure the or defendant the failure guilty report money over or money account that any into hands was .came about or act of by caused the the or other brought bookkeeper any per- son, their or if oversight, or mistake inadvertence. And you should from the in the case believe there was an arrangement the the defendant cashier the bank at by Rusk which the cashier the defendant when drafts or notify checks collected, if you were believe from the evidence that the defendant had a method or adopted system by which he was not credit accounts parties the on the books of the until penitentiary had received a the bank that notification the check or draft and if finally paid, you had been should further or believe, if you have doubt, a reasonable failure to any report any money collected was (cid:127) about a failure of cashier of by the brought the bank to notify defendant the checks or drafts had been paid that at the time defendant to Hill he did not know reported had been and for that reason did not same, paid report and if you further find that failure sums that report any were collected may have mistake by about or or brought inadvertence oversight through between the bank and the arrangement defendant as above ex- then the defendant would not bе guilty the failure to plained, as collected, such would be considered as moneys criminal act on his This items, refers to a charge evidently few some two part.” or three number, the Dallas constituting Water Works drafts and Hines Lum- draft, and Company ber some others about perhaps which there was at delay collecting some bank. to the According on these drafts to the parties indebted penitentiary not bank, until charge against appellant final reported to the col- Busby y. The State. However, lection. the evidence conclusively shows check every introduced State was shown to have been collected ultimately bank, was a proper So charge against appellant. far as we advised, no there is as question matter, of mistake to this as to the collections made Busk bank. If collections were placed bank, others, in that of appellant’s private which were not funds, collected, appellant made mistake as bookkeeper these, overdrew the appellant account, the record does even suggest such Bor matter. do we recall any made, mistake as far as the evi is concerned, dence as to the books kept by
or under his supervision; nor monthly reports made him to Hill, taken from his book of accounts at the kept penitentiary. Be this, sides guilty in gross negligence mingling dividual with the State’s he did If money, so. any mistake was made in this must be such that regard, so person acting under the mistаke would have been exonerated had its toas conjecture correct, the fact been and it also must be such mistake does arise from a want of care on the part proper person committing Bew Law, offense. Criminal Bishop’s See see. 302 and sec. believe the 313. We do not court was called on to give appellant’s on mistake. sufficient requested gave charge, to the fraudulent think, we with reference intent necessary offense, on placed burden properly constitute intent, fraudulent and it was not to show this to define necessary than was done. course, intent further Of cases of this fraudulent on be a fraudulent intent the part there must character, appellant, fact mere of a failure account for funds in addition but additional slight evidence is and belonging received State, and v. State, supra. v. Jackson As was See Evans required. State, Miss., 414: “It will thus appear Hemingway well said point the reported much confusion English there *15 that the rule declared in bound to hold Bex v. Grove but we eases, no can other rule cases There be involving public rule. true is the terms, and absolute control having and long custody holding officers of the state of their accounts are reports and whose funds, of public failure to over balance If the shown his pay by to time. from time and correctly kept, books to be noth- granting books, granting own far reprehension, of worthy any official conduct officer’s ing a not warrant conduct, will inferring such act discloses then short, the indictment found and sum any conversion treasurer, character, or other officer like will state any prosecution moreover, it form, will, but a shameful empty and vain be a only which even the noto- judicial legerdemain play demoralizing and If the doctrine that just punishment. escape surely shall guilty riously unex- legal obligation, standing as required over, to pay failure conviction, then the unfaithful warrant will unrelieved, and plained use, moneys personal the public convert safely officer public Oim.—20. Vol. Beports. Texas Criminal refuse, or fail to settle over the and boldly blandly pay and either balance, and securely defy unexplained plundered people simply countenance, demeanor, an unruffled and maintaining placid wearing is books, and not to the world that he correct keeping publishing vaults. it cannot be treasury Surely, the State’s steadily emptying maintained that such a successfully transparent believed or thoroughly would not transform the courts of judicial travesty proceeding mere theaters for idle mummeries. And this is yet exactly into country find ourselves it is true that finally situation which we shall to a failure to simple faithfully attaches responsibility no criminal officers, for and over without public moneys by account State’s pay to their obligation.” according legal reasonable explanation, the fiscal of the State, nature who are very things, agents “In the and disbursement of receipt public through in the mоney employed embezzlement, be convicted of office, rarely, never, terms can long over, or refuse to there be an unex- pay though where fail even final the evidence of that shortage accounting, except plained over, failure to and so the requirement itself and plainest shortage us, drive in the administration of the law punishing will necessity, embezzlement, hold that balance shown to be due by crime of failure to must alone pay over, unexplained, own books and officer’s is one; The rule is not only necessary a conviction. warrant as well.” reasonable and just, eminently outset of career at the have, peni- at the very Here we banks as for the State’s three using depositories as alleged, tentiary, behalf of the State assigned, purely reason on without money friends; and we have all these ac- of appellant for the benefit as Assistant Financial Agent name of appellant counts kept him moneys we find shifting the penitentiary, him, find to his state- other; according we one bank from in said banks and same moneys depositing his individual ment, placing criminal, as to be to say so negligence gross This money. as State it. least of as Assistant penitentiary his taking after Shortly at a bank Center Shelby assisted organizing Agent, Fnancial who lived at friends, formerly of his Gates- one Texas, with County, also a brick town. He organized manufactory home' ville, appellant’s with his ac- indiscriminately accounts' these Busk, kept him, insolvent as shown and, proved That concern counts. him he states that his individual $5,800, now about due into must con- gone bankrupt resources his own derived of sales suppressing entry we find to this In addition cern. Lubbock, these through bookkeeper ap- books *16 and not sales abroad. Whether these sales been local to pearing what was done after known, or Lubbock is not not ever entered therefrom, sales, the funds derived and with local the penitentiary left this, we find him to to re- failing addition In informed. we are v. The State. 1907.2 to items, $6,000 some according statement, number worth, a
port moreover, the State’s in his money, and, he collected which reports in Hill, instances, to a number collections he reported of certain less him In he had collected. one instance he to than charged peni- security, Hill, to gave Financial tentiary procuring $200, and he which cost this as “extra charged Agent, expenses.” Wortham, successor, his office After he turned over according latter, he admitted he was short and promised this, he fled make it Instead good. State his name. changed all these circumstances In the face of and others with which this record not occur it does to us that the replete, court was further required intent, or to define fraudulent instruct to a mis- regard nor can it be said fact; take of is not sufficient to our it is opinion the verdict. In ample. justify reversible errors no record the There is af- judgment firmed. Affirmed. dissents.
Davidson, Presiding Judge, ON MOTION FOR REHEARING.
May 15, 1907. HEHDEBSOH, Judge. a former At term the judgment this and now was comes beforе us on affirmed, case motion for rehearing. on the motion we will passing review such only questions as we material and necessary think are be considered. In the original we held that the opinion judgment against appellant a civil suit was in evidence him on admissible part State judgment criminal case. Said was rendered in a civil suit, in which of Texas was Hill, the State and M. plaintiff, W. C. the financial agent and his of Texas bondsmen were penitentiaries, defendants. In that of this the defalcation was the suit material question, and Hill others made the defendant party defendant. The involved this directly litigation management the Busk and his deficit the four penitentiary, during years of his as Hill’s subordinate. At instances management of the parties to auditor litigation appointed, he ascertained and reported the court deficit some The suit was compromised, consent and a rendered for the sum judgment $4,200, about one- Hill, which was paid by half of other half of which was paid a bond who were company securities this appellant’s bond. offered that evidence against case. This was to on the ground that a objected a civil case admissible appellant. As stated, ap suit, the civil pellant party State was party to that suit, and the same subject-matter, to wit: appellant’s defalcation indebtedness to the involved in both suits, we,
308
51
Texas Criminal
therefore,
the
held that
judgment was admissible.
In his original pres
entation
the case appellant
furnished no authorities, but he now
citеs a number
to sustain
position, and he also criticises the authori
court,
ties cited
to
wit: State v. Intoxicating Liquors, 47 At
lantic
and
v.
Rep., 779,
Coffey
S.,U.
ported or not” And it was held knew fact defendant whether the de criminal case there United States, presented *18 of crime, been of a neither forfeited its rights had not guilty fendant actiоn, its a pre in the timber nor civil right property of are of to recover the value such We proof, property. ponderance constrained to concede that neither of authorities referred formerly us in exactly and when do not by point, analyzed they support the view taken the court. have also been referred to the cases We Ind., 357; Ham, E., Dorrell v. 83 31 N. Commonwealth v. 639, 84, W., v. Meek al. 3, et N. as tending (Iowa), heretofore assumed the court on this support position proposi tion. The Dorrell for that a former simply authority holding case in a boundary civil action between two adjudication establishing in said was the de that the case admissible parties, judgment in a for across subsequent fendant prosecution trespassing boundary held line which had established. It was in that case previously of a in the establishment line a former ex boundary proceeding that into antecedent facts to the In inquiry cluded Meeks any contrary. it held that a of not entered guilty case was before justice under an act the maintenance of dam with declaring of the peace abatement, to be a nuisance was a bar to subject out a fishway in to abate the nuisance (the justice suit subsequent equity having in and-there no since change conditions), jurisidiction, would have been of the nuisance im part penalty abatement It there been a conviction before be justice. posed are in some of these cases the cases rе point, though that neither of that under certain circumstances in to tend to show judgments ferred in criminal admissible between the same prosecutions cases are civil effect see Dent v. Rep., to the same Texas Crim. parties; Co., S., 362, Life 187 U. Law Union Central Insurance 126; Burt v. in In the latter case the court held effect that the Edition, 216. yers’ in murder the first convicting of a State in a executed, which he was final civil action to under degree, in deceased favor the beneficiaries life policy recover on a case, in a civil offered discrimi insanity his plea as against therein from the Mutual Life Insurance v. Arm Company case nating However, the of the introduction of S., question U. strong, 117 -in a criminal case, between the same in civil cases parties a judgment cases, doctrine general several the courts been before has Queen In are not admissible evidence. such records announced Law, Common this A. & E. S.), English (N. Moreau, F indicted In that for Denman. case before Lord came question he, in a cause wherein in an affidavit deposing, committed perjury him 50 defendant, E owed pounds, F, and E was plaintiff, evidence was not admissible indictment, of this held, support 51 Texas Crimikal F E was, cause of after affidavit, making consent, referred and an award É made that owed to F. nothing cited, After some in which the colloquium, authorities are the chief said, “This was an justice indictment for an affidavit to perjury found an application that the capias, defendant alleging suit, 'indictment, prosecutor was indebted to him sum 50 pounds. prove order to the falsehood of that allegation, an award at the trial. After the' indictment was put the cause between found, came at the and was parties assizes referred then of a barrister, arbitration who decided favor of defendant, that he owed is the nothing His award plaintiff. to, document but admitted. objected a motion for a new trial on On we are of ground, opinion received; it was improperly because the untruth of the statement was inconsistent not necessarily with the defendant’s it to true; for his its believing knowledge require falsehood to be but because proved evidence; other *19 decision of the the arbitrator in to that fact is no more than respect his opinion, a declaration of there is no instance of such declara- of opinion being tion received as evidence of a fact the against party the proof be affected of it in case.” by any criminal Other authorities other the doctrine on as that rule in grounds the of evidence civil put and criminal cases the one different, on a authorizing judgment of evidence the other while the be- preponderance requires proof be doubt, Still, a reasonable etc. others the on the yond doctrine place the of a want not the in crim- ground mutuality, parties being same cases, civil and some the in upon inal and idea that a civil the case witnesses, need not bе confronted by parties can depositions in a criminal case the taken, be while must be confronted parties case, witnesses them. Britton’s supra, cited against appellant, much in There a civil very point. was recovered judgment against tax collector and his and it sureties, was held defaulting by the it was Court of Alabama that reversible error in the court Supreme in to have admitted evidence the same judgment against below party criminal the judgment in a prosecution, establishing the amount of In his defalcation. passing question used this lan- : “The recovered defendant and judgment his guage sureties, in civil suit instituted them County in his Hale, transactions, for liabilities incurred tax was not properly in any admissible establish fact on which it was rendered. actions are In civil authorized to decide on the juries mere preponder- evidence, when it produces ance satisfactory conviction. are authorized to prosecutions, they convict, criminal unless beyond party’s guilt any are satisfied of the reasonable doubt. The cause, moreover, civil have been may rendered on a judgment irrelevant prosecution criminal totally state of facts for embez- zlement, for a incurred as, example, liability reason of the de- or even his own deputies, falcation of the collector’s negligent loss of The State. tax would but not civilly for which he lia- money, criminally ble. Another reason still is the want of mutuality, parties different, the recovered proceedings being judgment having two the name of and the the name of the prosecution being county, Starkie, defendant, State. It would be hard for a as observed Mr. ‘that criminal which concerns or even upon charge, liberty, life, he should be bound default of his by any prop- defending ” To the same are effect several of the authorities cited erty.’ by ap- In accordance with these we constrained to hold that the pellant. view heretofore taken was erroneous, and that the court below should not have admitted the rendered in the civil ease judgment against ap- pellant, plaintiff State was a in the civil notwithstanding party suit, defendants; one thus there was far, mutuality, defendants, but not as there were mutuality other complete same, of the suit was the we have although subject-matter the rule was different the two seen, proceedings; have been doubtless was rendered a character Furthermore, this criminal permissible prosecution. proof hold that there was civil and complete mutuality both we if the actions, necessarily follow, State had been criminal civil rendered in action, favor of this defeated complete same would be a bar to criminal prosecution, appellant, itself, then question presents which is not the law. said judgment can we that it was not erroneously, say been admitted calculated having As in the original affect shown opinion, to injuriously appellant. one proof, judgment, three characters another State presented $6,000, defalcation, amounting of distinct items of about consisting of the auditors who examined the books and the other *20 in default, according that to their show- testified of this the midst of contrariety in the sum about ing, conclusive, the cut? If it evidence, what figure it, court cut further the off all by regard authorized were as they If it was facie prima only defalcation. evidence to his inquiry to show that the was erroneous. on appellant the burden cast before the as conclusive jury the judgment court put the Evidently in as he them effect if evi- defalcation, instructed the was in and that same had been default that appellant showed dence others, it would be no de- by settled paid subsequently have referred settlement of this judg- must charge This fense. paid. this, shows was Aside from we the evidence debt, which ment the solemn courts are re- judgments sanctity what with aware the entertained in case doubt jury upon and unquestionably garded, case, defalcation, this doubt appellant’s of the State’s lines other the reference to by removed Under judgment. entirely must it was to have a very bound decided circumstances, we believe case; essential feature State’s that one jury with effect thereof. amount defalcation is, appellant’s 51 Texas Criminal. must be reversed other, As the case on this if for no we will account, refer to some other in matters motion for merely assigned appellant’s in trial guidance court below another rehеaring case. in the court that
Appellant questions opinion holding lower court was not more than was done on required charge fully mistake, of fraudulent intent and and that this failure the question with the negligence to so charge justified appellant’s dealing funds therewith. We did funds and his own mixing State’s that court intend to because say appellant’s negligence authorized to that tantamount to fraud on his say would be was. the court was not our rather, opinion, required give part, instructed on this inasmuch as charges subject appellant’s thereto, and connection with the other proof in regard jury the court not be to further required charge to us that might it occurred However, fraud than was done. on an- on the mistake subject if the should be the same the court trial we suggest proof other as to his defense of mistake and directly instruct pertinently jury If his method of the bank. dealing superinduced the bank to to him certain col- failure of was misled collected, of the amounts he- to Hill reports in making lections of this a special charge. had the benefit While appel- should have fraud, it was not be intended suggestive lant’s might negligence It may of fraud. be that the court’s that this was plenary proof decide full and we have been was not enough, on this subject charge opinion holding in the original special mistaken However, this were not subject required. charges requested satisfactory If in another trial. should not be proof be remedied can were tried that the books offered is again the case when control, then direct supervision or under his appellant, kept said books excluded, other unless offered proof should be they entries. were books of they original kept; properly the court will rectify on another trial take it course, we Of on that be evidence, should a subject charge on circumstantial necessary. deemed all items be careful to eliminate the court should trial" another On introduced items that are Any limitation. statutes of
barred limitation, on the ground are questioned in evidence find such items all to disregard instructed simply verdict. their considering be so barred *21 reversed and the cause is and the judgment is granted, rehearing The remanded. remanded. Reversed and dissents.
Brooks, Judge, was Presiding Judge. the original opinion When DAVIDSON, I case, dissented, in this intending the judgment affirming down handed Busby y. The State. to write out reasons for my the dissent. for rehear- Upon the motion after a more careful and ing, critical in- questions examination volved, Brother Henderson reached the same conclusions practically that I in entertained case, to the regard disposition of the and em- bodied them in his for opinion on motion I now rehearing. concur that opinion reversing judgment remanding for another trial. it would serve Believing no useful purpose out a writing concurring opinion, or views of expressing any my own in discussed, to the I regard questions state this much simply to as the explain my position, case is now presented. Beliеving judg- remanded, ment is reversed and I concur. correctly Judge BROOKS, (dissenting).—I agreed affirmance of this case at a date of this previous court. There has been no legal reason motion affirmance suggested rehearing why of the case is not correct. I did laid agree not down in proposition the original civil that a contested is opinion conclusive a sub- defalcation, criminal for a but the sequent prosecution authorities cited brief, are collated in the on opinion motion for re- ,all where a authorities contested judgment was hearing, introduced prosecution. in a criminal But this case we have an subsequent agreed shows record was judgment. present evidence was taken the time during auditor, before entered, was or at and knew that least it shows that he stand, refused on the go trial present,' court asked “Q. Did you refuse take the him this stand and question: testify? the stand.” In other portions I did not take A. appellant’s testi-. his on failure to go he tries to excuse stand monv ground suit, he terms it, civil predicated upon that the segregated items. to recover from trying case the appellant, In that the sure- ,C. from W. M. bond, Hill, ties on principal, amount refused shortage. Appellant defalcation and of his on the get stand item, or show wherein a a single single item was or explain wrong, it, as stated for explanation, they because suing upon most absurd reason. The items—a prosecution asked segregated ap- “Don’t know that you you would nоt take question: pellant who was Reése, suit, because Judge a witness attending stand State, had a there to take stenographer your evidence on behalf Q. any. I did not see A. You were ? informed writing down facts testified to these that a if you stenographer fact that would State? evidence for the A. I take your naturally sup- there Q. Hill, down. Did Mr. or his lawyer, taken would be Judge posed Hudson, or W. A. be district or judge, Mr. used Hill Smith, who the stand and as to testify take whether himself, you ask facts money; save them or your private keep A. It money? my having impression them with me and did insist on it; entirely and they left it stated *22 51 Texas Criminal Q. me it. If it did blame for not doing truth it did the - it ? It not hurt for a A. is take taken down stenographer now.”
I from show excerpt have this quoted and part, is record full of other that testimony showing appellant was an active both and taking participant assisting auditor, whose an upon findings agreed judgment subsequently therefore, made he is bound and it can be and, agreement, proved a If he had stated to one subsequent prosecution. him.in $4,200, at the court that he owed the could have this admission Then if he concedes and an proven. agreed enters up judgment for the can’t $4,200, why Certainly sum of this ? equally proven above, it can. As stated the authorities cited the court in the I and new opinion overruling original opinion appellant a granting trial, But relate contested where judgments. certainly appellant is and an between himself present, participant active accounting all present, with his and advisers lawyers legal agrees then $4,200, with the to enter a it is with frittering judgment of said could agreed the introduction justice say judgment The us form a the reversal of case. record before shows basis for and of a trust on betrayal high shameless part a most prostitution so so infamous its proportions defalcation of appellant, mind it is when insisted in its details to startle outrageous have could done any injury introduction of agreed was not admissible. The record it shows case, conceding in this even $4,200. over and' above the It is of defalcation thousands of dollars ascertain the from the record to amount because troublesome very manifested own mixing rascality infamous funds, covering up, putting with the State’s funds Texas. The evidence clearly all over the State in banks $20,000. for at least He ad- judgment against warrant defaulter in he was the sum of agreed mitted auditor’s he report showed a compromise. That was $4,200. this, from was made up report “segregated He said owed from conclusion this record above, the would be As stated items.” would show at least defalcation an auditor’s irresistible has been tried according $20,000. However, trial, I solemnly protest a new he law, trial under the law of a fair not had has statement down the original laid opinion proposition assert record replete trial; defalca- such has out, manifoldly there is no case the State’s tions, the case. I reversal of therefore dissent requiring record error case. reversing opinion