119 S.W. 855 | Tex. Crim. App. | 1909
The charging part of the indictment against appellant is in these words: "That Eugene Hartnett on or about the third day of March, One Thousand Nine Hundred and Eight (1908) and anterior to the presentment of this indictment in the county of Jefferson, and State of Texas, Eugene Hartnett was then and there a police officer of the incorporated city of Beaumont, which said city was then and there duly and legally incorporated under the laws of Texas, and was then and there acting and serving as such police officer, and as such police officer and by virtue of his said office there had come into his hands and was in his charge, custody and possession the sum of two hundred and eighty-one dollars and fifty cents, lawful and current money of the United States of America, and of the value of two hundred and eighty-one dollars and fifty cents, a better description of which said money is to the grand jurors unknown, which said money was then and there the property of said incorporated city of Beaumont, and the said Eugene Hartnett did then and there unlawfully and fraudulently take, misapply and convert to his own use the said money against the peace and dignity of the State." The indictment so returned against him *284 and the prosecution which ensued was based on art. 103, of our Penal Code. This article is as follows: "If any officer of any county, city or town in this State, or any clerk or other person employed by such officer, shall fraudulently take, misapply or convert to his own use any money, property or other things of value, belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secrete the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be punished by confinement in the penitentiary for a term not less than two nor more than ten years."
Many questions were raised in the court below which have also been urged in this court, as grounds for reversal of the judgment of conviction. We think the case must be reversed because under the uncontradicted evidence the conviction can not stand for the reason the moneys appropriated must be public funds, owned by the city, and must come into the possession of the officer by virtue of his office, and his duties must be defined by law and can not be created by custom or usage. The evidence in brief showed that appellant was a policeman in the city of Beaumont and that he was assigned to the position of jailor, and that the moneys, the embezzlement of which is charged herein, came into his possession in payment of fines assessed (quite irregularly) against various defendants in the corporation court of Beaumont. There was absolutely no evidence in the record that by law he was authorized to receive such moneys. This authority by law was vested in the city marshal and he was required to make payments monthly to the city treasurer. While it is possible that appellant might have been indicted and convicted as an employee of the marshal, it is certain that as here charged, where the conviction is sought by reason of misappropriation of funds received by him as an officer and by virtue of his office, that under the authorities a conviction can not be sustained. This question is, we think, definitely settled beyond serious doubt by the decision of this court in the case of Warswick v. State,
"If any officer, appointed or elected by virtue of the Constitution of this State, or any law thereof, including as well as all officers, agents, and servants of incorporated cities and towns, or municipal townships or school districts, as of the State and counties thereof, shall convert to his own use, in any way whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any valuable security by him received for safe keeping, disbursement, transfer, or for any other purpose, or which may be in his possession, or over which he may have the supervision, care, or control, by virtue of his office, agency, or service or under color or pretense thereof, every such officer, agent, or servant shall, upon conviction, be punished by imprisonment in the penitentiary not less than five years." Passing on this statute the Supreme Court of Missouri say: "No provision of the statute is pointed out or found, which directs or authorizes the public school money of the State or county to be placed in the possession or under the supervision, care or control of a justice of the peace, for safe keeping, disbursement, transfer or other purpose, and we are unable to see how he, as a public officer, can be guilty of embezzling funds which never came into his possession under any authority of law by virtue of his office. If he had no right to the possession or control of this public money as an officer, he would have no greater right when acting merely under color or pretense of office. We do not think the language of the statute `under color or pretense' of an office can be construed to apply to an officer who, having in fact no right to the custody of public money, obtains the possession of it by falsely representing that he is entitled to its custody by virtue of his office. The statute was only intended to make one acting officially, under color of office only, equally liable for the misappropriation of the public money coming into his possession by virtue of his supposed official right to receive it, as he would have been had the title to his office been perfect." The doctrine laid down in the Warswick case, supra, was affirmed by the Supreme Court of Nebraska in the case of Moore v. State, 53 Neb. Rep., 831, where the matter is exhaustively considered. See also San Luis Obispo County v. Farnum,
This case is, as we believe, readily distinguishable from the ruling of our Supreme Court in the case of the State v. Brooks,
The indictment charges an offense; it follows the language of the statute. As we believe, however, under the law, the facts do not support a conviction. In this attitude of the record and in view of the fact that the indictment does charge an offense against the law, it results that the prosecution can not be dismissed, but the *288 judgment of conviction is reversed and the cause remanded for proceedings in accordance with this opinion.
Reversed and remanded.
BROOKS, JUDGE, absent.