HILDA V. CURRY v. STATE
No. 31,401
Texas Court of Criminal Appeals
March 23, 1960
195
The conviction is for indecent exposure to a child, as defined in
The testimony of the state shows that the appellant exposed his private parts to the fourteen-year-old girl named in the indictment; and while testifying the girl identified the appellant as the person who exposed his private parts to her. She notified the officers and gave them the number and description of appellant‘s car. Appellant‘s written statement was introduced in evidence and it corroborates the testimony of said girl.
Appellant testifying in his own behalf admitted that he exposed his private parts to the girl named in the indictment, but says he thought she was 17 or 18 years of age.
There are no formal bills. The informal bills in the record have been carefully examined and they do not show error.
The evidence is sufficient to support the conviction and no error appearing the judgment is affirmed.
Opinion approved by the Court.
WOODLEY, Judge dissented.
R. E. BIGGS v. STATE
No. 31,442
Texas Court of Criminal Appeals
February 10, 1960
Motion for Rehearing Overruled March 23, 1960
196
Leon Douglas, State‘s Attorney, Austin, for the state.
BELCHER, Judge
The conviction is for embezzlement; the punishment, two years.
The single count indictment alleged that appellant on or about December 1, 1953, embezzled $300 while acting as the agent and employee of Bill Franta Pontiac Company, a partnership composed of Bill Franta and Albert Franta.
The testimony of the state shows that the appellant at all times here in question was employed by said company and that her duties were those of keeping the books which included the preparation of deposit slips and the making of deposits at the First Liberty National Bank.
The state relies for a conviction upon the facts and circumstances of the making of a deposit on December 1, 1953 for the Bill Franta Pontiac Company at the First Liberty National Bank.
The duplicate deposit slip in the records of said company shows a deposit of $2,093.33 on December 1, 1953, in said bank.
An original deposit slip of said company in the records of said bank shows a deposit of $1,793.33 on December 1, 1953, in said bank.
The state offered testimony showing that the handwriting on said original and duplicate deposit slips of December 1, 1953, was in the handwriting of the appellant; and that the records of the bank showed no deposit in the name of the Bill Franta Pontiac Company on December 1, 1953, in the amount of $2,093.33.
Appellant contends that the court erred in permitting the state in making out its case in chief to introduce the records of several separate transactions of misappropriation of money from said company while the appellant was keeping its books which did not include the alleged $300 misappropriation on December 1, 1953.
The trial court recognized from the evidence that the jury should be instructed as to its consideration of the extraneous acts of misappropriation admitted in evidence, and in that connection charged the jury as follows:
“Evidence has been introduced before you as to other transactions than the one specifically set out in the indictment, between the defendant and Bill Franta Pontiac Company. This testimony was admitted before you solely for the purpose of showing the intent or system of the defendant as to the particular act charged in the indictment, if it does do so, and for no other purpose. If you consider such testimony at all you will consider it solely for the purpose for which it was admitted and for no other, for the defendant cannot be convicted in this case of any offense save and except the one specifically set out in the indictment, to-wit, the fraudulent conversion, embezzlement, or misapplication of the money charged in the indictment, if at all.”
To which charge the appellant objected on the ground that it placed a greater burden on her than the law requires. In addition thereto, the appellant offered a special requested instruction which sufficiently pointed out the error in the above quoted charge, that is, that it failed to instruct the jury that they could not consider the other transactions unless they found beyond a reasonable doubt that the appellant committed such other transactions and if they so found beyond a reasonable doubt, then they may consider the same in determining the intent of the appellant and for no other purpose.
Therefore it appears that the court‘s charge limiting the jury‘s consideration of the extraneous transactions of misappropriation failed to instruct the jury that they could not consider them against the appellant unless they believed and found beyond a reasonable doubt that the appellant committed
For the error pointed out the judgment is reversed and the cause remanded.
Opinion approved by the Court.
WOODLEY, Judge (dissenting).
Ernster v. State, 165 Tex. Cr. Rep. 422, 308 S.W. 2d 33, appears to support the majority opinion but, as I see it, the opinion herein demonstrates the error in that reversal.
The opinions treat “transactions” and “offenses” as synonymous, and find reversible error because the charge did not require the jury to find beyond a reasonable doubt that appellant “committed such other transactions” before they considered them for the purpose of showing the intent or system of the defendant as to the particular act charged.
It is difficult to understand how one can be guilty of a “transaction” which is not a crime.
Evidence of similar extraneous transactions becomes admissible whether it shows the commission of other offenses or not, where it shows system, intent, knowledge or identity Cage v. State, 167 Tex. Cr. R. 355, 320 S.W. 2d 364; Stanford v. State, 103 Tex. Cr. R. 182, 280 S.W. 798. See also Campbell v. State, 163 Tex. Cr. R. 545, 294 S.W. 2d 125.
These authorities, and not the Ernster case, should be followed.