No. 4090 | Tex. Crim. App. | Oct 4, 1916
Lead Opinion
Appellant was convicted of “aiding- and abetting in embezzlement,” as stated by the judgment. It is claimed by both sides that the indictment was preferred under article 523, P. C., which as to the offenses charged is:
“Every president, cashier, director, teller, clerk or agent of any state bank, • * * incorporated under the laws of Texas; who embezzles, abstracts or willfully misapplies any of the moneys, funds or credits of such state bank, * * * with intent in either case to defraud such state bank, or any other corporation, body politic or any individual, person, firm or association, * * * and every person who, with like intent, aids or abets any officer, clerk or agent in any violation of this article, shall be deemed guilty of a felony, and shall, upon conviction, be imprisoned in the state penitentiary for a term of not less than five years nor more than ten. years.”
As will be seen from the indictment, it has some indications of having been preferred under article 96, P. 0., also’.
“That at the time and all the times herein alleged the Guaranty State Bank of Mt. Selman, at Mt. Selman, Tex., was a state banking association, which had been theretofore duly and legally incorporated, created, organized, and established under and by virtue of the acts of the Legislature of the state of Texas and under the laws of said state in such cases made and provided, and was then and there existing and doing a banking business as a state bank of deposit and discount at the town of Mt. Selman, state of Texas, county of Cherokee, and at all times herein alleged, one A. E. Burns was the cashier of said the Guaranty State Bank of Mt. Selman. And that heretofore, to wit, on or about the 15th day of December, A. D. 1915, one H. W. Ferguson did then and there knowingly, _ willfully, fraudulently, and unlawfully and with the intent in Mm, the said H. W. Ferguson, to injure and defraud the said state bank, aid and abet the said A. E. Burns, he being then and there cashier as aforesaid, then and there unlawfully and fraudulently secrete and take, and to embezzle, abstract and willfully misapply certain of the moneys, funds, and credits of the said state bank for the use, benefit, and advantage of him, the said H. W. Ferguson, and for the use, benefit, and advantage of a person and persons other than the said state bank, the name and names of said person and persons being, to the grand jurors unknown, to wit, the sum of $5,000 in current money of the United States of the value of $5,000 and the funds and credits of the value of $5,000, then and there belonging to and being the property of the said state bank without the knowledge and consent of said bank and its board of directors; that is to say the said A. E. Burns heretofore, to wit, on the day and year last aforesaid, in said county and state being then and there 'cashier as aforesaid, aided and abetted by the said H. W. Ferguson, did then and there knowingly, unlawfully, and fraudulently, and with the intent to injure and defraud said state bank, unlawfully and fraudulently secrete and take and willfully embezzle, abstract, and misapply certain of the moneys, funds, and credits, of the said state bank, amounting to the sum of $5,000 and of the value of $5,000, a more particular description of which is to the grand jurors unknown, and cannot be given by the grand jury, in the manner and by the means to the grand jurors unknown, and the said A. E. Burns, by virtue of his cashiership as aforesaid, was the receiver and controller of and having charge of the moneys, funds, and credits of the said the Guaranty State Bank of Mt. Selman, and he, the said A. E. Burns, had received, and there had come into his hands and was then and there in his possession as such cashier, by virtue of the power of control, direction, and management said A. E. Burns had as cashier, as aforesaid, over the moneys, funds, and credits of said banking association, did then and ’ there willfully, fraudulently, and unlawfully secrete and take and embezzle, abstract, and willfully misapply moneys, funds, and credits belonging to said bank, to wit, amounting to the sum of $5,000 current money of the United States of America and the funds and credits of said bank to the value of and to the amount of $5,000, a better description of which is to the grand jurors unknown, and cannot be given by the grand jury, which sum of moneys, funds, and credits he, the said A. E. Burns, did then and there unlawfully and fraudulently secrete and take from and out of the moneys, funds, and credits then and there belonging to and being the property of said state bank, without the knowledge and consent of said state bank and its board of directors, said sum of $5,000, a more particular description of which said moneys, funds, and credits so embezzled, abstracted, and willfully misapplied being to the grand jurors unknown, and same were taken without lawful authority, as they, the said H. W. Ferguson and A. E. Burns, and each of them, then and there well knew, and the said sum was then and there willfully, wrongfully, and unlawfully appropriated and converted to the use, benefit, and advantage of the said H. W. Ferguson and of the said A. E. Burns, and each of them, and for the use, benefit, and advantage of a person and persons other than the said state bank, the name and names of said person and persons to this grand jury unknown and the said H. W. Ferguson knowingly, willfully, fraudulently, and unlawfully aided and abetted the said A. E. Burns, Cashier as aforesaid, therein with the intent in and of him, the said H. W. Ferguson, to injure and defraud said state bank.”
We have not quoted all of the statute (article 523), but have omitted that part of it which has no application herein. The parts omitted also prescribe some separate and distinct offenses in addition to those we have mentioned above. This statute, and the indictment under it, does not come within the well-settled principle that when a statute prescribes two or more ways that a given offense can be committed, the indictment can allege all the ways conjunctively and sustain a conviction if either is properly proven, but, instead, this statute does not prescribe three separate and distinct ways of committing any given offense, but prescribes three separate and distinct offenses. Hence we think the indictment is also fatally defective, because in one count it charges three separate and distinct offenses, if, as stated, it charges any offense at all.
In criminal pleading, it is always permissible and commendable, when necessary or proper to charge an accused with the offense in separate counts in order to meet the proof as it may develop. Under this statute, each and every separate and distinct act of embezzlement, or of abstracting, or of willfully misapplying, is a separate and distinct offense, and can be preferred, and probably should be, in separate and distinct indictments. However, we see no necessity in the disposition we make of this case of discussing anything further in connection with the law or the indictment.
There is one matter, however, we will call attention to, and that is, the statement of facts embraces questions and answers, objections and arguments, remarks of the court and many other things it ought not to contain. If we had ever reáched it herein, doubtless if the Assistant Attorney General had made a,motion to strike out the statement of facts and not consider it because of the way it was made up, in all probability we would have sustained his motion. The statute on this subject and the many decisions are so clear and distinct to the effect that such a statement of facts will be struck out and not considered, but will not cite them again now.
The judgment is reversed, and the cause dismissed.
<3=>Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
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Rehearing
On Motion for Rehearing.
The state’s able attorneys who were employed specially to prosecute this case have filed a very elaborate and lengthy argument and brief, urging vigorously and forcibly that this court erred in holding the indictment herein defective. They invoke several well-established doctrines as applicable herein, such as surplusage, and that an indictment can properly allege conjunctively all the ways, when there are more than one, in which a given offense may be committed, and that proof of either will sustain a conviction, and some others, citing and quoting very extensively many decisions of this court on these points. All these doctrines were thoroughly considered before the original opinion was prepared and handed down, and, upon the most mature deliberation, we concluded none of them had any application to this case. We deem it unnecessary to discuss any of these doctrines.
There can be no question but that if the statute under which this prosecution was had had prescribed only one offense and three or more ways in which it might have been committed, the indictment could legally and properly have charged conjunctively in one count the offense as committed in all these ways; but, as held in the original opinion, said statute prescribes three separate and distinct offenses, and not three ways of committing one offense. Said statute (P. O. art. 523), copied in the original opinion, was taken literally as applicable to our state banks from article 5209 of the United States Revised Statutes (U. S. Comp. St. 1913, § 9772), as applicable to national banks. The federal courts, in construing that statute, have expressly held that it provides for at least three separate and distinct offenses, to wit: (1) Embezzlement; (2) abstraction; and (3) willful misapplication, of any of the moneys, funds, or credits of such bank. U. S. v. Lee (C. C.) 12 F. 816" court="None" date_filed="1882-06-15" href="https://app.midpage.ai/document/united-states-v-lee-8122977?utm_source=webapp" opinion_id="8122977">12 Fed. 816, and many other cases from the federal courts to the same effect. After the most thorough search, we have been unable to find any decision of any federal court under that statute which holds, or intimates, that it prescribes but one offense and three ways of committing it.
The cases of Green v. State, 66 Tex. Cr. R. 452, 147 S.W. 593" court="Tex. Crim. App." date_filed="1912-04-10" href="https://app.midpage.ai/document/green-v-state-3935915?utm_source=webapp" opinion_id="3935915">147 S. W. 593, and Ferrell v. State, 68 Tex. Crim. 487" court="Tex. Crim. App." date_filed="1912-12-11" href="https://app.midpage.ai/document/ferrell-v-state-3916794?utm_source=webapp" opinion_id="3916794">68 Tex. Cr. R. 487, 152 S. W. 901, particularly relied upon by the state, as well as other cases cited, we think, have no application to this ease. In all those cases, we were discussing an indictment under a statute which did not make two or more separate and distinct offenses, but the two or more methods of committing one offense, and all these cases, properly considered, clearly make that distinction.
The state’s attorneys cite State v. School-field, 29 Tex. 502, wherein Judge Bell held that the motion or demurrer to quash the indictment in that case which was simply and solely because it was “insufficient in law,” did not inform the court whether the objection was one of form or of substance, and that the lower court was not called upon to pass upon any such general objection. They also cite in that connection the case of Phillips v. State, in the same volume, page 234, wherein that decision of Judge Bell’s was cited. In the Phillips Case the Supreme Court did not follow the Schoolfield Case, but, on the contrary, did consider the objection in that instance to the effect solely that the indictment was “insufficient, and charged no offense known to the law,” and held, as the lower court did, that the indictment was good.
We have given this case and the questions arising in it an unusual amount of investigation and consideration, and also have carefully studied the state’s brief and motion for rehearing, and we are thoroughly satisfied that our rulings in the original opinion were correct. The motion is therefore, overruled.