*1 any into County; sheets or in Randall that he stolen or carried any way tends County. Randall There is no evidence may sheets, unless such the theft of the connect with found in the above summarized facts. be uncorroborated
A sustained conviction will testimony accomplices. of one more accomplice state-
An himself his own cannot corroborate Ed., P.C., persons. 2d ments made third Branch’s Ann. Sec. 748, and cases cited. writing applies accomplice makes a
The same rule where the person. apply a third would to his oral statement to cor- We conclude there is not sufficient evidence witnesses, accomplice hence the roborate the is insufficient to sustain the conviction. judgment is reversed and the cause remanded. Cage Ben v. Jack State. 29,751. No. 1958. May 28, Rehearing Motion 1959. January Overruled Rehearing
Second 1959. February Motion for Overruled *2 Irwin, White, Ivan Irion, Dallas, King Pete R.M. and C. Haynie (on appeal) Houston, appellant. for Henry Wade, Allen, Attorney, James Criminal District K. Attorney, Alexander, First Assistant F. A. District Wm. D. Jim Bowie, Williamson, Attorney, Dallas, James Assistants District Douglas, Austin, Attorney, Leon and for the state. State’s DICE, Judge. money
The conviction is for embezzlement the value fifty over; punishment, years dollars confinement penitentiary. in the appellant vice-president
The state’s evidence shows that was Corporation, corporation a chartered under the laws ICH Texas, principal place of The with its of business in State Dallas, original city County, corporate Texas. The Dallas Corporation corporation Discount which name of the was ICT amendment, changed later, by charter to was together Company Life with ICT Insurance managed Company by Insurance Texas Jack and ICT Cage president principal Co., appellant and and of which stockholder. Corporation, upon Knoll, Secretary of the ICT Francis J. state, by testified that on
being June a witness called as $100,000.00 addressed a in the amount of draft received payable Missouri and Dallas; that on Bank payment National at Mercantile him of the by telephone and advised date called such Corpora- funds of ICT pay the same from him to draft and told paid the draft instructions he ; pursuant appellant’s tion delivering check issuing by an ICT on Bank National $100,000.00 to the Mercantile amount of signed check was corporation in that bank account of co-signer. That secretary his assistant him as of ICT file the officers resolution on virtue of bank corporation and sign checks on authorized to tion were corporation and the he in the both virtue of their offices belong- care, custody, possession and control had in Dallas. Bank ing corporation Mercantile National *3 $100,000.00 dis- that after the testified The witness further Corpora- bursement, on the books of ICT item was carried the Corporation; from Missouri Union as an account receivable tion payment was and no a loan not considered as that the item was company in left the up to the time he the received of account Feburary, 1956. Welshans, Missouri Union B. President of
Edmond upon receipt tion, by state, a the testified called as witness appellant, on Missouri $100,000.00 draft drawn from the 20,000 to three Corporation shares of stock issued Union receipt money appellant; the and issu- of nominees completed and Missouri was ance of the stock the transaction Corporation Corporation as a result of did not owe Union ICT shortly $100,- after the the He further testified that transaction. deposited of Missouri Union Cor- 000.00 was to the account Missouri, City, appellant, poration, the who in a in Kansas bank Corporation, with- Board Union was chairman of the of Missouri signing by a on the $96,000.00 check drew from the account called corporation; discovered and that when the transaction was had his that the withdrawal been to attention advised investment; corporation the as an made in the name of $100,000.00 by in the amount of later sum was secured a note pledge by Corporation a collateral executed agreement Oxford 20,000 whereby by appellant shares of executed by Corporation to had issued Missouri Union stock which been security pay- pledged as collateral appellant’s nominees were 20,000 of stock were there- that the shares ment of note and Corporation by in cancellation acquired after Missouri Union the note. the balance due on Sparks, Corporation and mem- Paul C. director of the a ICT committee, had no knowl- ber of investment that he testified edge payment $100,000.00 funds in disbursement ICT made with- of the draft drawn on the and that it was permission his out and consent. interrogation Appellant through testify did but his sought
the state’s witnesses and exhibits introduced $100,000.00 purpose show that was to disbursement Corporation form an to loan the to Missouri Union company enter into re- insurance in Missouri which would treaty Company take insurance with the over ICT Insurance by company’s It shown business Missouri. group in Texas transactions between ICT Corporation $420,000.00 was the Missouri the sum of Union Corporation; by Corporation loaned ICT Missouri Union however, approved evidence shows the loan was security Corporation, a note and directors ICT collateral given paid reference to the therefor and the loan was without sought $100,00.00 Appellant that the also to show disbursement. Corporation $100,000.00 item carried on books of the ICT as an account from Missouri receivable exchange 1, 1956, paid July an and settled on under the terms of Cage agreement between and Jack Com- pany which showed that and evidence was offered State the contract $1,044,984.35 virtue of lost exchange.
Appellant $100,000.00 attempted also to show that the trans- action with for the benefit of Missouri corporations group and and all the in the ICT ICT that he had no Corporation in the defraud trans- intent to ICT action. appellant in the shall discuss the contention of order
We argument. presented in his brief and oral Appellant permitting first insists that the court erred in state to introduce in 16 checks evidence issued Saunders, a of tion to J. B. member the Insurance Commission Texas, they were not shown other embezzle- of because to be ments, guilty, transactions or offenses of which charged. with, to, the or relevant offense connected in reflects the checks were admitted evidence
The record witness, appellánt’s after on the intent the court issue
359 Knoll, they in- had testified that issued to were Saunders legal according appellant, for, structions to the testified that while services rendered Knoll legal corporation could rendered services to the Saunders have he him. knew none rendered general prohibits
The
rule which
evidence of extraneous
recognized exceptions.
offenses has certain
the ex-
well
Under
rule,
ceptions to the
of extraneous offenses or transac-
evidence
intent, knowledge,
system,
tions is
identity,
it
admissible where
shows
State,
291,
Rep.
etc.
144
Crutchfield v.
Texas Cr.
162
699;
140,
State,
Rep.
S.W. 2d
Lawson v.
Texas
148
Cr.
185
Campbell
State,
Rep.
2d 439 and
S.W.
v.
163 Texas Cr.
294
exceptions
2d 125. Under such
the rule
S.W.
evidence
though
similar transactions becomes
show the commission of other offenses. Stanford v.
admissible even
does not
State,
Rep.
Texas
State,
Cr.
The issuance appellant’s of the checks to under Saunders directions were similar transactions to that of the issuance of $100,000.00 the being question company check in in that funds were appellant’s at per-
disbursed direction. If Saunders was forming legal no corporation company services to the being defrauded as a result of the issuance the checks under appellant’s directions. Under the the court did err record admitting appellant’s the checks in on the issue of $100,000.00 intent question. transaction Appellant next insists that requiring erred in court Byron witness J. his presence jury Saunders to assert in the privilege immunity testifying. Appellant’s from conten- presented by tion is Exception which, Formal Bill of No. 3 originally presented court, certified witness prior taking Saunders the witness stand advised state’s counsel that he privilege, intended to claim his that counsel for requested advised so the court and that the matter be presence hearing jury determined out of the but court ruled the jury. matters were admissible before exception approved by bill of qualification the court with the “Any matter of act or recitation of set forth in *5 the Bill which are at variance from the shown in the facts official prepared by record in this reporter as case the court clerk and the court by true, are by not certified me as but are certified me being as contention of the A defendant.” reference to the state- given only by by ment of facts shows the reason the court request witness, Saunders, for his examined that the be hearing at- presence jury “He’s an outside the was torney, lawyer you Bar, just are.” The fact member of the like legal attorney the an no was constituted witness Saunders ground why presence not in the or reason he should examined exception, hearing jury. the the the record bill of Under qualified, as does not reflect error. court, charge, jury’s in consideration of his limited the concerning to J. B.
the evidence introduced the checks issued instructing ad- by jury that such evidence Saunders determining appellant and mitted aid them intent of in purpose they such evi- for no other and that not consider could determining guilt only in de- in his or innocence but dence design. termining his intent and charge
Appellant given by insists that as the court it was erroneous for reasons. He first contends that various the in- erroneous of the use of the term in because “and/or” supported by the evi- struction. That instruction was not by an the court because dence and was unwarranted comment by Company rather Insurance referred checks issued Appellant than shown evidence. charge failed because it further was erroneous insists they jury consider the extran- to instruct could before they beyond a doubt eous transactions must believe reasonable guilty thereof. charge Appellant objected the trial court to the language: following supported
“for reason that same is not the evidence being wrongfully and meeting in evidence and same introduced regarding requisite transac- the law extraneous Charge of an unwar- tions. The thereon constitutes Court in this cause.” ranted comment Court charge 658, V.A.C.C.P., provides that before a "^Article jury a rea- the defendant or his counsel shall have read present his and he shall sonable time examine same ground writing “specifying objec- each objections thereto provisions objections this statute to a court’s tion.” Under point complained, charge specifically out the do not error State, Rep. v. 148 Texas Cr. considered. Dozier of will not be State, 2d and Matterson v. 146 Texas Cr. 158 S.W. 2d Rep. 621, 791. 177 S.W.
861 charge Appellant’s objection constituted “an to the and unwarranted comment the the did Court of evidence” regarding requirements “not meet law extraneous the of the charge general objection transactions” a the constituted to specifically point any error as did not out the therein to court therefore, complaints 658, supra, appellant’s required Art. charge State, properly presented are to the not for review. v.Gill Rep. 531, 926; State, 84 Texas 208 Lucas v. 88 Texas Cr. S.W. Rep. State, Rep. 257; Texas Cr. 225 Parsons v. 102 Cr. S.W. State, Rep. 239, 278 444 161 Texas Cr. and Soto v. S.W. 2d 812. S.W. give charge appellant’s requested The court’s refusal to the they jury acquit which would have instructed if the to $100,- a believed or had that he reasonable doubt withdrew the 000.00 caused the same to be withdrawn under claim a of right, taking was not error as the of issue the right a of under claim was not raised the evidence.
Appellant permitting insists that the court erred in the permit state’s testify foreign witness Knoll to of a corporation, Company Dakota, Guardian Insurance of South to do business Texas was objection back-dated over testimony irrelevant, such immaterial and the records would be the best evidence. The record reflects that the witness gave testimony such on redirect examination after had brought through out on cross-examination of witness that various Company re-insurance treaties between ICT Insurance foreign corporations, and certain the reserve of ICT Insurance Company would be benefited which in turn the benefit purpose $100,- ICT and that such was of the prosecuted. being 000.00 disbursement which he was In testimony by appellant view of the elicted relative to re- Company insurance treaties between ICT Insurance and various foreign corporations testimony complained of was not sub- objection ject being irrelevant and immaterial. The application rule had no best evidence to the witness’ testimony permit requiring that the was back-dated. The rule produc- original writings applies only purpose tion of where the prove evidence offered contents of the document. See Ray, Evidence, Ed., Texas Law McCormick 2nd sec. 1566. back-dating permit only as to related to granted permit when contents of the instrument. permitting find error in action the court no
We evidence, including journal entry from to offer a state 5, for the No. records of Exhibit State’s showing purpose $1,000,000.00 a loss of over exchange Cage with Jack & tion as result its contract *7 sought July 1, Appellant to Company had under date of 1956. exchange $100,000.00 contract the disburse- show under the fully paid and settled. to ment Missouri Union was act, 728, Y.A.C.C.P., provides part of an declara- that when Art. tion, conversation, given by party, writing one is may in evidence by subject inquired into the other. the same the whole on having $100,000.00 Appellant, to show that offered evidence transaction, state to paid authorized the was and settled in the only $100,000.00 was not to show not offer evidence corporation lost over paid transaction but sufficiently identified $1,000,000.00. No. 5 was Exhibit State’s secretary, Knoll, Corporation by its of as the official records 3737, admission Art. Y.A.R.C.S. in evidence. to authorize its App., 2d 420. Wilkerson, 285 Texas Civ. S.W. Amberson v. appellant’s that the court committed contention overrule We failing state, require in advance of error in reversible the wit- trial, the names of to list or inform the of upon record reflects was found. The nesses the indictment require the 11, 1957, a motion to appellant filed that on October of the witnesses or to list on the indictment the names state 14, 1957, on the on action same to him and October furnish 21, 1957, the court until October motion was deferred 21, 1957, appellant set for trial. October date the case was On by the state after the list the witnesses furnished with a called ready for trial and no witnesses were parties announced ap- presented list not named on the the state who were 392, attorney provision pellant. of Art. V.A.C.C.P. The on the indictment the names representing the state shall endorse has the same was found whose the witnesses mandatory. State, directory v. 19 and not Walker held been State, Rep. 44, 176; 24 v. 114 Texas App. Pruett Cr. Texas 41; State, Rep. 9, 132 Texas 101 v. Cr. 2d Easterwood S.W. Rep. 9, State, v. 143 Texas 101 Cr. 2d 576 Jackson S.W. as a result injury to is shown 2d No 921. S.W. hence, appears. action; Ellisor no reversible error v. court’s Rep. 282 2d 393 and Newton v. State, Cr. S.W. 162 Texas Rep. S.W. 2d State, 179. 162 Texas Cr. support sufficient the verdict of the the evidence findWe guilty appellant’s and overrule finding appellant contention jury because of variance is insufficient between the the same allegation proof to the name in indictment and the as injured charged appellant party. with embezzle- The indictment Dallas, Texas, Corporation, ment of poration.” a Cor- from “ICT offered in evi- The charter amendment thereto corporation dence the state that the name of the showed Corporation.” principal as place “ICT Its is shown business being Dallas, County, proof in Dallas Texas. sufficient Such allegations support to thereof, the indictment and not variance “Dallas, Texas,” allegation words clearly descriptive indictment were location ICT Cor- poration name. of its judgment is affirmed.
Opinion Approved by the Court.
DAVIDSON, (dissenting). Judge,
My appellant’s rehearing, brethren overrule motion with- for opinion written . out original conclusion, To that as also the affirmance of this
case, agree. I do not jury appellant guilty The found of the of crime embezzle- ment. wrong,
If that conclusion be the blame therefor must rest jury, they they with the for alone were judges the exclusive of the witnesses. It proved credibility facts and of the jury apply was for the the facts to the as law submitted to finding jury them trial court. The of the is of no force support if jury or effect there be no facts to it. The can not supply its or verdict make facts. duty especially It this court —to de- courts — jury’s
termine whether facts authorize the conclusion. question paramount then, importance, is whether the jury’s finding warranted the guilty facts necessity, embezzlement. Of it must be known what constitutes the crime of embezzlement the essential elements threof. answer, 1534, P.C., furnishes and reads as Art. follows: officer, agent, clerk, any employe, attorney “If or at law or any fact, incorporated company institution, any clerk, or or agent, attorney fact, employe or in servant any at law or
364 any association, or
private person, copartnership joint stock or embezzle, consignee money property, fraudu- shall or or bailee use, consent lently misapply his without or convert to own money property of such employer, any or principal of his or possession may come into his principal employer which have or employ- office, agency or his such or under care virtue of he had ment, punished manner as if in the same he shall be property.” money theft of such committed four elements that statute that are It is clear from there necessary are: to be These established. and, agent corporation (1) that the accused was the receiving agent, charged duty with the such embezzling charged
with which he was with money; (2) that the accused did receive agency, money by (3) of his virtue he received (4) his and converted to own use that he embezzled money so received. predecessors this court and its have is the construction
Such nearly years. placed upon a hundred See Note 1 the statute for attesting authorities, including P.C., of Art. Vernon’s State, Rep. Texas Cr. case of v. S.W. Fellers *9 2d 217. charged guilty the state the indictment In following allegation that the he under embezzlement *
“* * officer, president, agent, to an wit: servant and Corporation, Dallas, Texas, corporation a employee of ICT Texas, incorporated the laws of the and the under State duly embezzle, Cage fraudulently then and there did said Ben Jack use, misapply to own without the consent and convert his money belonging to the said certain the said wit, Dallas, Texas, corporation, to one Corporation, aggregate is of value over dollars which hundred thousand possession money of, had come dollars, said into fifty of, the care the said under Ben Jack- and there and was then Cage servant, employment officer, agent, as such by virtue such * * (Emphasis, supplied.) employee, as and aforesaid supplied emphasis express atten- I have in order call to alleged tion to the fact instant indictment the four charge em- elements set out was the heretofore and that money. bezzlement of allegation charging appellant
There was no in the indictment embezzling any stocks, credits, property, with belonging or balances bank
to the ICT Having embezzling charge money, its based case alleged. necessity required prove the state was of that fact as court, evidence, the trial at When the close came on charge give jury governing and this them law case recognized necessary, convict, jury he it was in order to that the and, mentioned, find thereto, four elements above in obedience jury they instructed the could or would before they required authorized to convict were find from the evi- beyond dence a reasonable doubt
(1) agent that the defendant was the of the ICT tion, alleged, employment charged his terms of receiving with principal; from his
(2) he money belonging did so receive to his principal;
(3) that he it in employment; received the course of his (4) embezzled, that he misapplied, or converted to his own use principal employer. without the consent of his Note, again, “money,” which, the use word as the trial jury. court defined and told the *“* * inciudes, gold, silver, copper besides coins, or other bills, government circulating bank *10 charge, jury appellant guilty that the Under found of em- bezzlement, charged as in the indictment. The ap- trial court finding jury. My proved brethren approve likewise finding. 366' agree, respectfully submit I do not conclusion
With conclusion. not warrant such that the facts in evidence do rests: upon which this conviction Here are facts vice-president According Knoll, appellant witness Corporation. of the ICT the Mercantile had an with
The ICT account upon Dallas, to draw funds Bank of Texas. In order National persons required signature at two that account the of least signers. He act of those Appellant could as one on the check. upon not, signature, funds. upon draw those his lone could Corpora- day June, 1955, Missouri the 15th On Missouri, City, tion, corporation a Missouri domiciled at Kansas Cage Cage, upon appellant, Jack & a draft Ben Jack drew c/o Co., through $100,000 Mercantile National for the sum- said, Dallas, Bank, time at That draft arrived in due Texas. 22, 1955, according bank, and on June Knoll, Corporation, secretary-treasurer he of the ICT witness delivering (Knoll) paid the Mercantile the draft National against $100,000 the funds payable to the for Bank a check bank signed bank, by him and one the ICT Buchholz. Don issuing given authority said his check was
Knoll long telephone person he a with whom had a distance him and whose he and whom he identified as voice conversation appellant, recognized pay who told him to that of the funds of the ICT draft from the $100,000 item as carried entered
Knoll Corporation as ad- an account receivable. He books solely telephone that he drew the check because mitted no other official of and that he consulted with conversation thereto. relative $100,000 was remitted to the Missouri Union Missouri, deposited City, and was credit Kansas tion in City corporation in bank. Kansas of that charged $100,000 that em- this with It-was' bezzling has been convicted. and for which he
Welshans, Corporation, the Missouri Union president *11 $100,000 Corporation testified that for the the Missouri Union 20,000 issued shares of its three common stock to individuals designated by testify appellant. persons did not Those three whereby the case. testified that the Welshans transaction Corporation $100,000 Missouri Union was com- received the pleted with issuance of the stock. testimony
The effect of was that the Missouri Welshans’ Corporation 20,000 sold shares of stock for $100,000. point
At development this in the of the state’s case the testi- mony divergent takes two trends. I am unable to ascertain contending appellant therefrom whether the state is con- 20,000 verted the shares of stock to his use or own whether contending appellant $96,000 state is converted $100,000 Corporation. from the Missouri Union Whether one against is immaterial, contention tenable as the other is proof fails to establish either.
Looking, first, happened $100,000 to what after it went Corporation into the bank account the Missouri Union in the State of Missouri:
According Welshans, to the witness days about three after reached the bank withdrew the sum of $96,000 therefrom, check, in the name of the Missouri Union Corporation, signed by him. Appellant was a director and chairman of the board of Corporation,
Missouri Union which fact is difficult to under- stand in view of Welshans’ never owned a share of stock Missouri Union $96,000 part
The cancelled check a is not of this record. The payable evidence shows that it Corporation, to the Oxford corporation. a Nevada January 27, 1956,
On six about months after the above transaction and after had severed his connection with the ICT the witness Knoll testified oc- —which days thirty prior January 27, 1956, curred about and which — year prosecution a this over before was instituted Corporation paid Oxford the Missouri Union $98,268, represented principal $96,000 sum of $2,268 in addition. way transaction: described the
Here Welshans entity corporate “Actually, Missouri Union January transaction, term, you on if use out of bowed 27, ninety-eight a draft in the amount of when drew *12 sixty-eight thousand, the Oxford dollars on two hundred through Company in Corporation Trust New Manufacturer’s City.” York instituted, Missouri. year prosecution the a
So before this originally Corporation $100,000 received had the it Union profit. $2,268
Surely the can converted not be said any part offense for which $100,000 thereof. Yet that is the or he stands convicted. 20,000 happened shares of to the stock?
Now what payment February $98,268 after above On the Corporation mentioned, a in the sum the executed note Oxford Company, payable Finance $100,000, to the Missouri Union on or six months thereafter. due demand Company subsidiary of
The Missouri Union Finance was a Corporation. It was not the Missouri Union the Missouri Union corporation. Corporation. It was a different appellant pledged payment the To secure note the 20,000 which the shares of stock Missouri Union originally had issued. owner of tion Whether show, any the record does not nor there the stock pledge agreement at he executed the collateral he the time that was they or that had shares of stock been en- owner dorsed him. $20,000 payments, a Corporation two or
The Oxford made $40,000, $100,000 on that note to Missouri Union total period a Company, two three months. within Finance thereafter, year Approximately Missouri Union settled, discharged, Company and cancelled Oxford Finance accepting 20,000 shares, note which had note, payment paying pledged to secure the been Thus, Corporation. $100,- for the $30,000 in cash Oxford note of the Oxford represented in the company realized Company, Missouri Finance Union 20,000 Missouri of stock in the $10,000 in cash and the shares Corporation. Union possession thereby 20,000 shares of stock went into orig- Company, intact and Finance
of inally Missouri Union issued the Missouri Union got stated,
Appellant none of that stock. As heretofore Wel- shans testified that
“* * * there never was a share of the stock in this [Missouri Cage.” Ben Jack issued to Union] days Company four after Missouri Finance Some 20,000 stock, 1, 1956, acquired Corporation July shares of or on the ICT Cage Company, corporation,
and the Jack a Texas exchange agreement entered and executed a into sales or where- *13 by Corporation “quit Cage did claim Jack and ICT unto rights, Company Corporation’s titles, interests, all of claims ICT * * following properties and demands in and to the *.” described Among properties following: described are claims, rights “All of the and choses in action of ICT Cor- against poration Corporation, Missouri Union a Missouri cor- poration, 100,000 paid for the or advanced to Missouri [sic] Corporation by Corporation ICT on or June about 1955.” return, Cage Company
In Jack transferred to ICT Corporation properties agreement. certain listed in the agreement
That was executed in the name the ICT Cor- McFaddin, poration by president, A. J. and attested Marie secretary-treasurer, Myers, put and was state. signer speaks any The instrument for itself. No thereto or challenged officially Corporation one connected with the ICT its Corporation paid fully that was correctness or ICT or compensated $100,000 property for its it received in exchange therefor. May indictment in this was returned and
The case filed on 29, 1957, approximately eleven which was months after by quitclaim Corporation had transferred to another ICT cor- poration paid Mis- $100,000 all its interest it had Corporation. souri Union testimony regarding
The therefore shows transaction long Corporation fully compensated, before was prosecution instituted, $100,000 this it had advanced for the Corporation to Missouri Union and that the Missouri Union Corporation nothing prosecution this was in- owed when stituted. strongly
That evidence tends that the ICT to show parted Corporation $100,000 tion its with to the Missouri Union voluntarily anyone and that neither nor else embezzled from the ICT significent testimony, however,
The most feature of that is part that it shows consent on the $100,000 paid
transaction rather than that the Mis- its consent. souri Union without foregoing upon are the facts this conviction rests. analyzing applying In these facts to this conviction it vastly important is more to notice the of evidence than absence proven. what note outset, passing
At the let it I am not be understood guilty stealing whether the from the ICT. stockholders, guilty he is or its or whether wrecking criminal, corporation, or whether he is thief ought general generally, penitentiary to be sent to the on *14 principles. only is matter before this court whether the facts here
The guilty embezzling appellant $100,000 presented that is show of Corporation converting money the it to his in from ICT use, passing I am on. and that is all own out, necessary pointed prove it for state I was the to As have Corporation charged vice-president the was the of ICT that receiving money duty for and on behalf of the the of ICT with Corporation. that of evidence here shows what is not a line There vice-president ICT were
duties of duty vice-president in of the to receive that it was the corporation. that behalf em- element of the offense of
Yet that is the first essential required This it has that state was to show. bezzlement wholly failed to do. prove required
The state was also and in addition out, second and third essentials heretofore set which are that appellant involved, by $100,000 this did receive the here virtue vice-president fact that he of the testimony is All There not a line of this case so shows. contrary. the facts are to the exact $100,000 possession
The was in the actual Mercantile of the possession only National Bank. It was in the constructive persons those who were authorized to exercise control over and Appellant to check it out of the bank. was not authorized to against money, individually draw check either or as vice- president corporation. necessary of the fact appellant sign to call Knoll and Buchholz to the check that he shows could not do so. If had been in either possession money, the actual or the constructive of the he could possession money. have exercised that out checked possession $100,000 But mere of the is not sufficient to show required $100,000 embezzlement. The state was to show that the possession came vice-president into the of the corporation, duty imposed upon under the that officer to receive it. There not a line of that so shows. any person
No officer of the bank or other testified as to $100,000 the source which was All bank.
testimony shows is that there was in the bank to the credit of money. that amount any is an utter lack of evidence that
There ever at possession $100,000 in had or that time bank he re- vice-president any it as of the ICT ceived or that vice-president duty imposed upon the office of to receive money. say is, me, the state has It inconceivable here met establishing by the evidence the first the burden three of the *15 crime of embezzlement argument, of the heretofore four elements set out. it let be said that the sake if the But for state 872 elements, completed em-
did establish those three crime still bezzlement has been shown or established. element,
There remains to be established the fourth essential appellant is that to his own and converted embezzled $100,000 in money. use the in There is not a line his appellant this case that that sum of converted own use. property by use of the to his own
Conversion accused must in to exist. be shown order for the crime of embezzlement State, 32, Rep. 865; Texas Sherman Lawshe v. 57 Cr. 121 S.W. State, Rep. 488. v. 124 Texas Cr. 2d S.W. Embezzlement, expressed Jur.,
Here is the law as in Am. 12, page 577: Sec. principle element
“The is well that an essential established lawfully property is of embezzlement the conversion possession property If the in the actual accused. is owner, larceny. possession or constructive the offense is * * * Generally, may custody property said that mere distinguished support possession an from does not suffice to as * * * The reason for this rule accusation of embezzlement. gains person possession custody, property as so to constitute that if charge custody only divest the such does not a bare appropriation of the possession the true owner and the from larceny, amounts to property under such circumstances not embezzlement.” State, Rep. 117, 53 Texas
The case of v. Cr. 109 S.W. Smith supporting last statement. is cited larceny is the same as “theft” under common law of The law. Texas case, require- in this to that indictment obedience Texas, did, County,
ment, alleged in Dallas embezzle, “fraudulently misapply and convert to use” his own $100,000. allegation, state was under the burden of Under converted, County, Texas, showing in Dallas $100,000 to his own use. a line of converted to is not
There *16 could any part How money thereof. or use that sum his own shows all the evidence use when it to his own have converted he sum of received the Missouri Union concerned, has it? More- and, still money this record is so far as any appellant owned stock over, never under in- even he could not have Missouri in the directly benefited therefrom. utterly prove conversion failed to the state has
So again charged. But, let it be alleged here $100,000 during argument the trial sake that if some time said for the use appellant his own prove converted to the state did or that purchased therewith money or the shares of stock proves therefrom, by such no means he received some benefit embezzlement. everything heretofore were ex-
If else I have referred to having proven, yet treated as been cluded from this record or to a conviction insurmountable obstacle there remains one attempt not and does not over- the state can this case which explain. come any there
I call attention to the fact that if be case, only within the State of in this such occurred conversion in the of Texas. Missouri and not State however, tending evidence, to show conversion
All the $100,000, appellant or the stock of Missouri Union of the thereafter, in the of Missouri. issued occurred State use, any part of the to his own converted If and not in occurred the State Missouri conversion such $100,000 by of the was con- If conversion Texas. the stock of the the issuance of Missouri Union summated entirely within the State of Missouri Corporation, such occurred of Texas. the State and not within any place conversion took not as to where question This presupposes an venue, venue offense has because one contrary, question jurisdic- is one of proven. To the
been offense has been and, proven, no shown to have been until tion courts of which the of Texas would state have in this committed jurisdiction. trial court to find this jurisdiction has not shown, of embezzlement been nor offense
guilty by appellant has the offense of embezzlement been shown Texas. have occurred within State of law, ap- record, undisputed facts, this and the Under pellant proved guilty has not offense of embezzle- been ment. remaining may
In order that silent I cast *17 position agreeing admissibility sixteen checks of the whereby paid the funds of the to J. B. were Saunders, only say under the I have that there was no issue those facts of case which authorized the admission this in checks evidence. says rule
This admission in violated that evidence in that extraneous offenses and transactions are admissible only presented issue is under the evidence when some facts motive, identity, system intent, of the as to accused. case dissenting My question found in the views will be 239, State, Rep. opinion Parnell Texas v. 166 Cr. case 2d 506. 312 S.W. unmindful of the fact the con-
I am not blind to or expressed, has clusions I have here to the effect and that tried and convicted in accordance with law been legal guilt competent and evi- his has not been established dence, contrary publicity and are to the adverse critcism given appellant. notoriety to this case and this my duty solely this under the written It is to decide case pre- under the facts and the record here law of this state and nothing recognize else. This I have done. and to sented Supreme It Mr. Holmes of Court of Justice Craig Frankfurter, in Mr. Justice v. United States —whom 1560, Olympian Harney, 1546, p. as “an L. Ed. at referred to 91 that he from the currents of life who was so remote common said, referring newspapers” once to our did not read —who Colorado, system justice, in the case of Patterson v. 205 U.S. 881, Sup. (at page 462), Ed. 556: 51 L. 27 Ct.
“* * * ftyat reached in a case will the conclusions to be argument open court, only and not induced influence, private public talk or by any whether outside print.” Bridges said, in the case of Black who
It Mr. Justice Sup. California, Ct. 190: 86 L. Ed. 314 U.S. v. through elections, “Legal won not like to be trials are newspaper.” meeting-hall, radio, use in- my respectfully I enter dissent to the affirmance stant case.
Frank v. John Callas State. 30,094. January 7, 1959. No. Rehearing February 11,
Motion for Overruled 1959. *18 McCarthy, Haynes McCarthy, Rose & (George Counsel), Amarillo, appellant. Moser, County Attorney, Amarillo,
Lon Douglas, and Leon Attorney, Austin, State’s for the state. Judge.
WOODLEY, complaint allege and information drove public a motor vehicle Operator’s road “after the Texas * * * License suspended” of the said Frank John had Callas been alleged and further period had received an extended * * *” suspension Operator’s “of said Texas License expired. suspension and that said had not carefully the record have searched and find no We suspended license which had been Oper- was a Texas alleged License, information. ator’s notes other medium cur- money.” rent as statutory is the definition. Art. Such P.C.