Golden v. State, No. 2297

No. 2297 | Tex. App. | Oct 16, 1886

White, Presiding Judge.

In this case the indictment contained two counts—one for theft and one for embezzlement of money alleged to be the property of one E. J. Weedon. The conviction was for embezzlement.

There are two bills of exception in the record, but the Assistant Attorney General insists that they cannot be considered, because not filed in the court below within ten days from the conclusion of the trial. They were filed, however, before, adjournment of the term, though when filed more than ten days had elapsed since the trial. Articles 1363 and 1364 of the Revised Statutes prescribe the rules with regard to bills of exception, which apply to both criminal and civil cases. By those Articles it is provided that the bills must be presented “ to the judge for his allowance and signature during the term and within ten days after the conclusion of the trial,” and that if a bill be “found to be correct it shall be signed by the judge without delay, and filed with the clerk during the term.” It is the presentation of the bill to the judge, and not the filing of the same,which is required to be done within ten days after the conclusion of the trial. If presented within ten days to the judge, then, whenever allowed and approved by him, the bill may be afterwards filed, provided it is filed “during the term.” In so far as a different rule is stated in Keeton v. The State, 10 Texas Court of Appeals, 686; Cummins v. The State, 12 Texas Court of Appeals, 121, and Morris v. The State, 17 Texas Court of Appeals, 660, those cases will be overruled. (See R. R. Co. v. Joachimi, 58 Tex., 452" court="Tex." date_filed="1883-01-18" href="https://app.midpage.ai/document/sabine--east-texas-ry-co-v-joachimi-4893950?utm_source=webapp" opinion_id="4893950">58 Texas, 452; Blum v. Schram & Co., Id., 524; Harrison v. The State, 16 Texas Ct. App., 325.) There had been no adjohrnment of the court for the term when the bills of exception in this case were “filed with the clerk;” the term was not adjourned until the day following. (Clement v. The State, post, 23.)

By the first bill of exceptions it is shown that the admission of the evidence of tlie prosecuting witnesses, previously taken and reduced to writing at an examining trial of the case before a magistrate, was objected to because: “First—The witnesses were absent from the State by the aid and procurement of the State’s attorney. Second—Because the justice of the peace had failed to write his name across the seal of the envelope containing the testimony. Third—Because the certificate of the justice of the peace failed to show that the evidence had been read over to the witnesses, or that it had been signed by the witnesses as the law requires.”

In regard to the ground stated in the first objection, to-wit: that the county attorney had aided and procured means for the witnesses to leave the State, and was instrumental in their leaving—the facts are stated in the bill; and, instead of being in any manner a reflection upon, they are a credit to the humanity and conduct of that officer. The witnesses were two old, and one helpless, females, without husbands or protectors, who had been induced by the wiles of defendant to come from their distant home in North Carolina only to be swindled by him the day after their arrival out of the hard earned means they had been able to lay up during nine or twelve years of constant labor in a factory. Strangers in a strange land, thus helpless and destitute in mid winter when their hapless condition was developed at the examining trial; the county attorney made up the money to take them back to their old home and friends in North Carolina. This and nothing more. The facts show he was not trying to get them away for purposes of his own. His conduct in doing as he did is in every way commendable, and no blame can attach to him or the .State that under such circumstances the witnesses were beyond the jurisdiction of the court at the time of trial.

As to the second objection, the bill of exception fails to furnish any evidence that the magistrate had failed to write his name across the envelope containing the testimony, as is required by law. (Code Crim. Proc., Art. 314; Kerry v. The State, 17 Texas Ct. App., 179.) In the absence of the proof showing the fact to exist, we will presume that the fact could not be established by proof.

The third objection is that the certificate of the magistrate fails to show that the evidence had been read over to the witnesses, or that it had been signed by the witnesses as the law requires. The statute provides that the testimony, after being reduced to writing, “shall then be read over to the witness, or he may read it over himself, and such corrections shall be made in the same as the witness may direct, and he shall then sign the same by affixing thereto his name or mark. All the testimony thus taken shall be certified to by the magistrate taking the same.” (Code Crim. Proc., Art. 267.) It is, however, no where required that the magistrate’s certificate shall set forth the fact that the evidence was read over to or by the witness. In fact, no particular form is prescribed by law for the certificate of a magistrate to testimony taken before him as an examining court. (Evans v. The State, 13 Texas Ct. App., 225; Hart v. The State, 15 Texas Ct. App., 202; Kerry v. The State, 17 Texas Ct., App., 179; Timbrook v.The State, 18 Texas Ct. App., 1). And the law will presume that such things as are here complained of were done as the law requires or directs, without a certificate to that effect. (O’Connell v. The State, 10 Texas Ct. App., 567.) We find the testimony of each witness is signed as the law requires, and the magistrate certifies to each statement that the same was sworn to and subscribed before him. None of the objections urged against the testimony were maintainable, and the court did not err in admitting it in evidence.

We will consider the second bill of exceptions, which calls in question the correctness of the charge of the court, with the motion in arrest of judgment, which attacks the sufficiency of the indictment, in so far as it attempts to set forth acts and allegations constituting embezzlement. Upon comparison of the indictment in its embezzlement count with the approved precedent to be found in Willson’s Criminal Forms, No. 509, p. 219, and authorities cited, we find a sufficient and substantial compliance with the requisite allegations, and that the charge as therein contained is sufficient for embezzlement.

It was attempted to be shown by the defense that the money obtained from E. J. Weedon, the alleged owner, by defendant, was in fact not her property, but money in her hands justly and properly belonging to the wife of the defendant; and it is contended that a husband can not be guilty of either theft or embezzlement when the property taken or converted by him belongs to his wife.

Upon this phase of the case, the court charged the jury as follows, viz: “If you find that the money described in the bill of indictment belonged to the defendant’s wife, Ella Golden, and that said money was voluntarily turned over to the defendant by E. J. Weedon, to be used by him, defendant, then defendant is not guilty of either theft or embezzlement; or, if said money belonged to defendant’s wife, and she, his said wife, was entitled to the possession of the same, then defendant would not be guilty; but this rule would not apply if the said E. J. Weedon was entitled to the sole possession of said money.” We are of opinion the instruction was correct and properly presented the law on this branch of the case, as applicable to the facts.

But again, it is most urgently insisted that the evidence does not warrant a conviction for embezzlement; that if any offense is established against defendant, it is theft and not embezzlement. We are free to concede that the defendant might have been convicted, under the evidence developed, of theft, by having obtained the money under false pretenses—the pretense being that he wanted to deposit it in bank to secure it for the owner—his intention at the time being to deprive the owner of it and appropriate it to his own use. But the fact that he might have been convicted of theft does not militate against the fact that he might, under the same circumstances, be guilty of the crime of embezzlement. “All authorities treat embezzlement as akin to larceny, and the statutory offense of embezzlement mainly originates in a necessity which resulted from the inapplicability of the common law of larceny to breaches of trust by persons occupying fiduciary relations. Concisely defined, it is the fraudulent appropriation of another’s personal property by one to whom it has been intrusted. The fraudulent conversion may be consummated in any manner capable of effecting it; and its commission is a question of fact and not of pleading when the indictment charges that defendant did embezzle, fraudulently misapply and convert to his own use the property entrusted to him. (Leonard v. The State, 7 Texas Ct. App., 418; Cole v. The State, 16 Texas Ct. App., 461.)

Opinion delivered October 16, 1886.

Defendant induced Mrs. Weedon to turn over.the money to him, ostensibly and with the understanding that he was to deposit the same for her in bank for safe keeping. She intrusted it to him for that and no other purpose. At the very time he obtained it, it is true that to all intents and purposes he was a thief, intending to steal it; but in so far as she was concerned, she was only creating him her agent to take the money for deposit for her to the bank. The trust imposed in him by her was that he would, as her agent, take the money to the bank, and it was intrusted to him solely for that purpose. Instead of complying with the purposes of the trust and his agency, he misapplied, misappropriated, embezzled and converted to his own use the money so confided to him. The evidence makes a most clear and indubitable case of embezzlement, even though it may contain all the essential elements of theft also. It amply sustains the conviction for embezzlement, and we feel fully justified in adding that the facts developed in this record discover as heartless and as inhuman a wrong to obtain money by fraudulent devices as is rarely to be found in the history of crimes unaccompanied by personal violence.

We have found no reversible error in the record, and the judgment is in all things affirmed.

Affirmed.