*1 DAVIDSON, Judge.
Appellant driving his convicted of an while automobile operator’s suspended, punishment license assessed and his aat fine of $25. alleged The offense is on or the 23rd have occurred about
day November, 1955. All license, operator’s evidence shows that appellant, expired February 13, 1954, had been issued to suspended expiration. and had prior not been to its No renewal issued, license is shown to have been nor it shown appellant. another license had been issued to the necessity, therefore, Of at the time of commission alleged operator’s might offense had no license which suspended. be was Because the support evidence fails to conviction,
judgment is reversed and the cause is remanded. Campbell
Alta v. State 28,208. May 9, 1956.
Appellant’s Rehearing Motion for Overruled October 1956. Appellant’s Rehearing Second Motion for Overruled (Without Opinion) Written October *2 McCarthy, of
McCarthy, by George S. Haynes, Rose & counsel, Amarillo, appellant. for Wayne Bagley, Howard, Attorney, Assistant Gib District Attorney, Attorney, Amarillo, Douglas, and Leon State’s
District Austin, for the state.
DICE, Judge. V.A.P.C., 95, Appellant under of was convicted Art. punish- misapplication county funds and assessed offense years’ penitentiary. in the ment at two confinement of the indict- under Count The conviction Sixteenth August, ment, day of that on or the 31st which about take, misapply 1953, appellant fraudulently and con- did benefit, law- Hundred Dollars in to her use and One vert own money being there States, then and ful current the United County, property Potter Texas. employed state’s was The evidence shows that September deputy county County a from clerk of Potter charge during January in time was until such office, deputies Department of of the where other Court supervision. under her worked through department costs
It all is shown this fines probate in criminal in civil and cases were col- cases fees showing lected. The records the office the collection fees book, department receipt book, a of a fee cash consisted book, monthly reports envelopes, deposit slips, and certain bank county auditor. testimony,
According appears a collec- to the when receipt case, therefor a was issued from tion was made a duplicate receipt re- receipt printed a book which entered in the cash book collected was also tained. The amount day’s col- amount the end of each business the and fee At book. envelope during day placed in an and on lected date, envelope written the number of outside of the receipt each receipt and the amount issued each en- all listed. written, and the total amount velope bookkeeper clerk’s office was then delivered to the in the fol- Department and would returned be to the Court lowing bookkeeper morning succeeding day and each until deposit en- made velopes, bank of the funds contained envelopes
after returned which time the were not places Department kept the Court stored various but in the clerk’s office.
It is County further shown that Clerk’s records years Harvey through Office for the audited 1954 were Todd, em- Accountant, a Certified Public under contract ployment County made with the commissioners court of Potter December,
Auditor Todd testified that his examination of from *3 records he found of the erasures and alterations receipt books, books, Department envelopes fee and in the Court shortage and department existing discovered the first in evidence of a the August September, in or He testi- further fied checking deposits that in the total amount of the bank against deposit the total envelopes amounts on the for the which was ascertained, made it many instances, was the in that bank deposit envelopes. was for an amount less than the on total the testimony shortage His department reflects that a in existed the years for each of by covered his audit. The exhibits, including state in offered evidence numerous
duplicate receipts department costs, issued in the for fines and which indicated erasures and words alterations of the and figures receipts originally in the amount for which the were written. Among duplicate by offered exhibits the state a re- was
ceipt August 31, 1953, dated fine costs in a and certain styled Case No. The of Texas vs. Arnold State Althaus, for the amount of amount The for which the $127.55. receipt figures was issued in was written and as fol- words 55/100,” lows: twenty One hundred seven & and “$127.55 signed Deputy.” was printed under the name of the clerk “AC receipt The further shows total fine and costs in the amount jail and a credit of $227.55 $100.00. state, August As a for the Althaus testified that on witness 31, 1953, paid he to the clerk’s office a total amount of fine and $227.55, only that he in costs jail the sum of was confined morning. Sunday following on until from noon The him, original receipt produced witness issued No. 6094 jail contain a did not which sum of $227.55 credit of $100.00. receipt issued to Al- The shows evidence further that August envelope
thaus was on the dated listed envelope that $227.55, the amount was shown department listed deposit bank envelope question, including envelopes, series of re- envelopes than from which less the totals of $100 ceipts deposited. morning April testimony further that on the shows 5, 1955, arrest, days was two her before interrogated County, the sheriff’s office of Potter Howard, Gaither, presence Attorney of Sheriff Paul District Gib Todd, Harvey County Mooreland, Auditor Boone and Auditor shortage regard to the clerk’s office. appel- testified that Sheriff Gaither conversation upon receipt lant, being certain had shown books which been erased, they handwriting; that altered or stated that were in had her hand- she done the alterations and that were in writing; upstairs and then stated she had a list at her home might saying help;” “that and returned left paper again at her and returned home and then left dates, many paper upon with three listed sheets which were *4 paper and amounts. The three sheets of delivered numbers appellant the and introduced in evidence as State’s Exhibit following 182 the notation: include - “8-31-53 6094 227.55 200.00 100.00.” 16984 ap- testified that in the interview Auditor Mooreland changed pellant that she had some of the admitted appeared altered and further “As to have been testified: remember, T I she said she had list of the alterations best ” and made, made.’ left the alterations I have before she to papers introduced as Exhibit No. returned with the State’s Attorney Howard testified that after inter- District Gib April appel- appellant morning on the 5 the view with afternoon, to his that at which time had lant came office following conversation: Howard, you tell me, ‘well, Mr. couldn’t “Then she asked grand brought IOU, jury and that that in is an this list I again way pay money I informed her can and I back?’ grand jury just present and we would the facts to the have to get developed, let them should out her mind and that she be ending- life; the idea of her I asked her if she wouldn’t and then herroinister, yes, to talk I who and said and asked she Baptist Bates, minister First was and she said Dr. Carl person only Church. I then asked involved in if she was the office, money county theft of and she clerk’s down anyone one; only stated that she was the that she didn’t want get trouble, only else to involved into was the that she one in it.”
Appellant testify, did not witnesses offered character but reputation who veracity testified that her for truth and being peaceable law-abiding good. citizen was Bates, Dr. Baptist Carl Pastor of the First Church Amarillo, appel- testified that he had a conversation with the lant April 5, 1955, afternoon of and in the conversa- tion the responsible I stated: “I am not for what being of, am thing,” accused I not am involved in the responsible shortages. was not
By Exception appellant complains Bill of No. 1 ac- tion overruling of the court in quash her motion to the indict- ground ment the commission nineteen (19) separate separate and distinct offenses in counts. that, record overruling reflects motion, after granted court require motion to elect state to upon which proceed count it would to trial and the elected state proceed to trial under Count Number of the indictment and that only such count was the count sub- indictment jury charge. mitted to the in the court’s
An charging separate indictment distinct offenses subject different counts is objection misjoinder; how- ever, an election the court or the state will cure a mere misjoinder of offenses set out in different Ann. counts. Branch’s *5 P.C., 506, Page 259; State, Sec. Collins v. 43 90. S.W. admitted,
The record reflects that the evidence relative to charged indictment, offenses under the other counts of the purpose proving not offered for the such counts but was ad- showing intent, system, as mitted or as a circumstance show- 550 charged
ing appellant’s guilt one count offense jury. submitted to the upon proceed
The election the state to to trial Count any mis- of the indictment error of Number 16 therefore cured joinder in the refusal the indictment no shown and error is appellant’s quash. of the court motion to to sustain By Exception Bills of 2 and 3 contends Nos. of- prohibiting proof the court extraneous violated the rule permitting ex- testimony and fenses in to state introduce Department pertaining hibits to transactions in the Court through year year 1954. on various dates from the 1951 objection appellant’s The record reflects that over consist- permitted state was to offer in evidence 174 Exhibits deposits, ing receipts, envelopes, entries duplicate bank collected books, and costs the fee and cash related to fines through during years in certain on various dates 1951 cases duplicate erasures and alterations 1954 which reflected resulting discrepancies short- in the records during period of age Department such of funds the Court time. re- the exhibits appellant’s
It that since is contention than the date separate lated dates other transactions on charged in Count Num- the offense been committed have being ex- inadmissible ber 16 of the indictment that such transactions, state insists while the traneous by appellant system to show the used was admissible of- August 1953, 31, which was basis transaction of also the indictment Count fense Sixteenth transaction. proof intent admissible as general extraneous prohibits evidence of rule which well-recognized exceptions. ex- Under has certain offenses ceptions offenses admis- rule, evidence of extraneous knowledge, intent, identity, etc. system, it shows where sible 699; State, 2d 144 Tex. R. S.W. Cr. v. Crutchfild State, 2d R. S.W. 148 Tex. Cr. v. Lawson this State, R. 145 S.W. 2d 140 Tex. Cr. v. In West meaning “system,” said: discussing the term court, term, is the use ‘system,’ as meant “By we understand
551 means, the same the same accom- manner and method of plishing previously planned objective.” a early State, 340, App.
In the Hennessey case of v. 23 Tex. 215, forging 5 S.W. in which the with altering against Texas, court, or an account State holding in post-office ad- certain other in transactions evidence, in quoted approval missible set with the rule out Evidence, Sec. 38 of Wharton’s Criminal as follows: object system, “When the subsequent to as show as well prior offenses, tending identity intent, when to establish or can put induction, be question evidence. is one larger facts, complete the number of consistent the more induction inculpatory is. The time im- collateral facts is material, provided enough together they that indi- close be cate part system.” are of a The rule Hennessey referred to quoted case
again quoted approval Vaughn with State, 138 the case of v. Tex. Cr. R. 2d S.W. which case was held prosecution in a by for theft scheme means of confidence testimony engaged to other similar transactions accused system. was admissible to show intent and Vigil State, In v. 148 Tex. R. Cr. 184 S.W. 2d accused, Company, who was a route salesman for the Cola Coca prosecuted changing growing for embezzlement out of his figures slip showing on a empty the number of cases he was returning company. permit- objection, Over the state was ted to introduce twenty slips in evidence dur- made ing period alleged prior of two months the date figures changed. offense on which the had been holding Judge In admissible, Graves, speaking the evidence court, for the said: “We think the admission of such other offenses system,
a pellant’s ap- establishing as well jury as are usable altering changing slip
intent thus recording machine.” proving appellant’s guilt, upon
In it was incumbent prove identity state to her and fraudulent intent in the trans- August 31, Although appellant testify, action did not testimony of Dr. Bates that had told him she was not together responsible shortages, with
involved or guilt issue guilty, raised plea a denial of not *7 identity and intent in the transaction. similar transactions that the the other We think evidence of system to show question the transaction in admissible intent. appellant’s identity fraudulent proof and in of the evi- receipts admitted of the altered fact render may appellant did not by issued the dence not have been they were written as the record reflects that them inadmissible appellant had department over and supervision. in the which issued objec- appellant’s Exception Bills 4 and 5 relate Nos. jury charge limited the portion tion to that of the court’s concerning ex- offered in their of the evidence consideration give appel- court to and to the refusal of the traneous offenses charge instruct- have requested lant’s which would substance intro- jury any purpose the to consider for ed the not offenses. duced of extraneous jury as follows: instructed the
The court concerning you other “If there is various evidence before alleged particularly out set transactions other than the offence indictment, you this evidence in this are instructed does, showing, it you solely purpose if admitted before operated by system, any, this defendant if or under which handling specifically mentioned of the transaction does, of this indictment, showing, intent alleged if it and of handling as the transaction defendant indictment, to the alleged obtaining money as and the all, indictment, purpose. you If consider it at for no other it solely purpose for which you consider it for will other, any admitted, proof other transaction for no as charge in this indictment.” proof contained is not approved Vigil State, supra, instruction was a similar In v. limiting jury’s con- instruction as a correct this court by extraneous offenses. of evidence offered sideration record, shown to have been Under transactions sufficiently the extraneous connected with given charge. the court’s instruction authorize the conviction, support Finding the evidence sufficient to appearing record, judgment and no error reversible is affirmed.
Opinion approved by the Court. appellant’s rehearing
ON motion WOODLEY, Judge.
Though objec- some of the altered introduced over working tion were deputy written and issued clerks state, supervision, under theory was the supported by appellant, circumstances the admissions of that she made the alterations and erasures shown in the re- ceipt only person books and was the involved in the theft *8 money from the clerk’s office. We remain these convinced including admissible, originally altered those deputy written and issued clerks. testimony through offered in behalf Bates,
pastor, ages appears Dr. any raise issue that short- “discrepancies” disclosed audit were in way system accounting due used the clerk’s office perhaps others, to the “carelessness” of responsible. was not
If, contended, necessary it was defense of lack raised, fraudulent testimony intent be of Dr. Bates made testimony the August as to altered receipt records other than the dated admissible.
Appellant’s rehearing motion for is overruled.
Henry Hankins v. State 28,527. October