196 S.W. 829 | Tex. Crim. App. | 1917
Lead Opinion
Appellant was convicted of becoming indebted to a state bank, of which he was president, in the sum of $8,000.
The first count in the indictment sets out the particulars of the transaction relied upon by the state, but this count was discarded by the court in submitting the case to the jury, and he submitted only the second count, omitting the third count. The count submitted charged that appellant was duly elected, qualified, and acting president, and a member of tbe board of directors of the First State Bank of Amarillo, a banking corporation theretofore incorporated and engaged in the business as a state bank in the city of Amarillo under the authority of the laws of the state, and as said officer he became indebted to the bank in the sum of $8,000, without the consent of the majority of the board of directors, and without having the matter drily registered or inscribed upon the minutes of the bank.
The indictment is attacked in that it fails to apprise the defendant of the nature and circumstances of the case and wherein he had violated the law. I-Ie invokes the statutory rule, which is settled, that everything necessary to-be proved must be alleged in tbe indictment. The writer is of opinion this indictment is too general and does not specifically notify the defendant of the transaction for which he is to be tried, and that the only allegation in the submitted count is of a very ■general nature and to the effect that he became indebted to tbe bank in tbe sum of $8,-000 without proper authority from the board of directors. The writer is of opinion, without going into a discussion at any length of the matter, that the count submitted to the jury is not, within the contemplation of the law, sufficient. The general allegation that appellant had become indebted to the bank in the sum of $8,000 is too general. There is a want of particularity about it, and it does not inform the- defendant of what transaction he is changed. There is nothing to describe the manner of indebtedness, or how it came about, so as to notify defendant of the matters and transactions that he was to meet by the proof. The first count set out particularly these different matters and gave appellant notice of how and when and the circumstances attending the indebtedness, and how it came about, but the court did not submit this to the jury. This much is said in a general way.
It will be noticed upon investigation of the case that all the facts to be relied upon by the state were known at the time the indictment was presented, and as to how the indebtedness was created, if there was any. The facts in this connection, as relied upon by the state, were made through the testimony of an accomplice, McSpadden. His testimony, substantially, is that Morris came and notified him of the fact that he could buy an optional cattle contract, the cattle being in Arizona; that he thought this option could be bought at $5,000, and if he had the money the trade could be made and profit made out of it by selling this contract for an enhanced value to other parties. I-Iis object in calling McSpadden was that McSpadden might enable him in some way to get the money. They discussed it, and Mefepadden, not having thfe money, suggested they see appellant, who was president of the State Amarillo Bank, and get him to furnish the money. Appellant was called, and McSpadden’s testimony is to
“Yes, sir;*it was agreed that Mike C. Le Master was to advance the money on the condition that I went along and used what influence I possessed to keep Morris from getting drunk, and Gus agreed not to get drunk any more, and straighten up. There was nothing said at that time about any other transaction. We were to do the best we could. We did not know exactly how much money it would take, but we were to let Mr. Le Master know. We wanted to get an option on the cattle for spring delivery and then sell the option. The agreement was that Mir. Le Master was to advance the money to be paid as a forfeit on the cattle and Morris and myself were to go out there and get a contract and purchase them and sell the contract.” ■
This occurred, on the 26th day of December, and on the 27th a note was executed by Morris and MeSpadden to the bank, appellant’s name not appearing in any of these matters. Upon signing the note Morris and MeSpadden left Amarillo and went to El Paso. They there got in touch with the owners of the cattle and bought the option. The owners of the cattle, however, required $S,000 instead of $5,000. By wire appellant was notified of that fact. He took the Morris and MeSpadden note and wrote above the 5,000 3,000. The intention it seems was to make the note for $8,000 instead of $5,000. The deal was made, and in three or four days the option was transferred at a profit of considerable amount and closed out, and Morris and MeSpadden came back to Amarillo and deposited the money in the state bank at Amarillo, and on the 6th of January took up and paid off the note. Appellant was not in Amarillo at the time, hut was in Ft. Worth. He knew nothing about tbe payment of the note until later information was conveyed to him. Morris testified in many respects as did MeSpadden, tout he denied that Le Master had or was to have any interest in the option contract, and was in no way connected with the profits or losses. In fact, he was in no sense, or in no way interested in the contract, nor was he to receive any profits, dividends, or pay any losses. Appellant testified in his own behalf as did Morris. After returning to Amarillo and taking up the note MeSpadden and Morris, without the knowledge of appellant, went to New Mexico with a view of purchasing other cattle. Appellant had nothing to do with this and knew nothing of this matter.
There was nothing said, as MeSpadden, Morris, and Le Master all testify, as to any other trade either then or in contemplation for future dealings. The fact that later they may have made other trades, or that appellant may have become interested in later transactions, could not afford testimony proving a partnership in a single transaction which.begun and ended with itself. These latter matters had no relation to or bearing upon the case; they did not serve to identify or develop the case; were not res geste, nor could possibly reach the question of system. The matter is here dealt with generally without going into details as shown toy defendant’s bills of exception with reference to these matters. There are several of these matters, all of which upon another trial should be excluded.
“If the accused elicits testimony adverse to himself, he must take the consequences; and he is not entitled to have it withdrawn from the jury because part of the same proof, when offered by the prosecution, had previously, on his objection, been excluded by the court.”
In that case the defendant moved to exclude testimony introduced by himself that he thought adverse to him. The state would occupy no better position under the same circumstances than would appellant. , The testimony, as said in the Speight Case, if illegal at all, was his own testimony, and we opine he ought to be held to take the consequences, and could not exclude it simply because it was found to toe unfavorable to bis case. In Moore v. State, 6 Tex. App. 563, the question came again. The headnote of that opinion is as follows:
“If the defendant elicits testimony adverse to himself, he must abide the consequences; and that a state’s witness, upon cross-examination by the defendant, testified to a confession made after arrest, is not cause for a new trial, as having improperly gone to the jury.”
The doctrine was approved in Allen v. State, 8 Tex. App. 67, and Robins v. State, 9 Tex. App. 671. In the case of McDade v. State, 27 Tex. App. 641, 11 S. W. 672, 11 Am. St. Rep. 216, the question again came. At page 689 of that report (11 S. W. 675) the court said:
“In the seventh assignment of error it is complained that ‘tlie court failed to instruct the jury that the declaration of Allehin to Felker that threats had been made against him by defendant was not any evidence that such threats were made, and that they should not consider such' statement as a part of the evidence for that purpose, when it was expressly requested so to charge by defendant.’ This evidence was drawn out by defendant upon the direct examination of his witness Felker, and neither the prosecution nor the court was responsible for it. If the defendant elicits testimony adverse to himself he must abide the consequences”— citing Speight v. State, 1 Tex. App. 551, and Moore v. State, 6 Tex. App. 562.
The state having introduced. Mr. Mood as a witness, and his testimony being introduced without objection from the defendant, the state could not, because the testimony was somewhat damaging to its case, withdraw it from the jury. The state introduced it and could not withdraw it over objection of appellant. The above cited cases seem to settle that question.
There are exceptions to the second subdivision of the charge on various grounds. This subdivision limits the jury to the second count, and charged if the jury should find appellant was an officer duly elected, qualified, and acting president and a member of the board of directors of the state bank, and that the bank was incorporated, etc., and be became indebted to that bank in the sum of §8,000 without proper authority from the board of directors, they should convict him. It will be noticed in this connection that this charge submits the fact that he was president and one of the board of directors. The indictment, while it mentioned the fact that he was an officer and member of the hoard of directors, it did not attempt to charge him with being guilty of violating the state law as a director, but only as president or acting president. The. president cannot borrow any amount of money from the bank without proper authority. The indictment did not undertake to charge any matter that would make him criminally liable as a director. He was charged as the president of the bank, and not asi a member of the board, of directors. If he was sought to be convicted as a director, then the charge should have specifically brought that matter to the attention of the jury.
“A partnership is formed by two or more persons placing their money, effects, labor and skill or some one or all of them in business with the purpose and -intention of dividing the profit and bearing the loss in certain proportions and may be made and entered into either by express agreement, oral or written, of those forming the partnership, or it can result from the conduct of the parties in relation to the business. Those forming the partnership are partners. When a partnership is formed each individual partner in relation to partnership business in law binds himself and each of the other members of th« partnership jointly and severally for any partnership obligations made in furtherance of the partnership enterprise and within the scope of the partnership business.”
The judgment is reversed, and the cause' remanded.
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Rehearing
On Motion for Rehearing.
In regard to what was said in the original opinion with reference to a bill of exceptions which contains matters and things set out through the witness Mood, the state contends that the opinion was in error in holding that state’s counsel was responsible for withdrawing all the testimony of Mood from the jury. The contention is that the state did not withdraw the statements of Mood on cross-examination by appellant's counsel to the effect that appellant had won the civil suit. Strictly and technically speaking this contention may be correct. The bill in regard to this matter shows that when Mood was placed upon the stand and the various questions asked and answers elicited, he was then passed to appellant’s counsel for cross-examination, and, among other things, it was elicited from him that appellant had won the’civil suit in which Mc-Spadden sued Morris and himself for settlement of alleged partnership matters, which involved the $8,000 matter. State’s counsel objected to this cross-examination as to the matters elicited from Mood, but the court overruled the objection upon the ground that the state had drawn out the matter, and this was a legitimate cross-examination. When this occurred the bill of exceptions recites that;
“Thereupon the state rested, an'd stated they desired to consult a moment, and within a few minutes returned to the court, and through their private prosecutor, Mr. Martin, stated to the court, ‘We are not going to introduce any of the record, and we ask that the court strike out the testimony of Mr. Mood in regard to it.’ (The record referred to being the transcript of what purported to be the statement of facts ill the case of W. A. McSpadden v. R. A. Morris et al., in which the state’s counsel had attempted to prove up by A. M. Mood for the purpose of offering the same and parts thereof to impeach the defendant as a witness.) The court then stated, ‘What part of the record do you have reference to?’ Mr. Martin stated in reply to such question, ‘All of Mr. Mood’s testimony identifying the record, since we are not offering any of the record, that evidence would serve, no purpose. We do not intend to offer the record, and we would like to have this testimony stricken from the record, since it does not tend to prove any issue in this case.’ ”
Thereupon defendant’s counsel objected to the withdrawal of any of the. testimony by the state for the reason they had offered the same, and when it was proved harmful to them they desired to withdraw it, and that it was material and beneficial to the defendant, and that they had no power to withdraw it when they had offered it themselves, and they considered it harmful to then be permitted to withdraw it. The court, not specifically ruling on the objection, turned to the jury and instructed them as follows:
“I will strike out and instruct the jury not to consider the testimony of Mr. Mood.”
In the former opinion the writer was under the impression that, legally speaking, state’s counsel were responsible for being really the moving parties in getting the matter before the jury as well as to its final withdrawal or exclusion after putting it in before the jury; that it was too late for the state to withdraw it after cross-examination of the witness in reference to the matter they had drawn out; and that their motion, had it been sustained, would practically have operated to withdraw all the testimony of the witness Mood, whether it was direct or cross-examination. If the writer was in error about this, then counsel for the state may not have been altogether responsible for the withdrawal of Mood’s testimony favorable to the defendant. But the matter was so intermingled — the direct and cross examination taken — with the remarks of the court it occurred to the writer that the ef-
Finding no reason why the motion for rehearing should be granted, it is ordered that said motion be overruled.