25 Tex. Ct. App. 267 | Tex. App. | 1888
Lead Opinion
Appellant Malcolmson was convicted at the June term of the district court of Parker county of the offense of embezzlement, from which conviction he appeals here and by counsel assigns numerous errors for a reversal of the judgment.
Several objections are urged to the sufficiency of the indictment, some of which will be noticed, to wit: 1. That said indictment fails to allege the names of the persons from whom the five hundred dollars were received by the defendant. 2. That it does not state the kind of money received, whether said
The Record shows that the Franco-Texan Land Company was organized on July 25, 1876. At a meeting of the share holders of the company on the thirtieth of July, 1885, appellant was elected its secretary and treasurer. This position he held until some time in December, 1885. By virtue of the by laws of said company, the secretary and treasurer was the custodian of the books of the company, and received the moneys of the same. Appellant took charge of the money belonging to the company when elected, and he received moneys from all sources as treasurer, until- he was superseded by another treasurer, some time in December, 1885.
Under this state of case it would be very remarkable, indeed, if the prosecution could, with any degree of certainty, show the character of moneys, or from whom they were received, etc. This would, in most of such cases as this, be a moral impossibility; and to hold that the indictment should allege and the State prove these facts would be monstrous. The result of such a doctrine would protect from just punishment those whose guilt could be made absolutely evident by the clearest proof. The indictment alleges that appellant embezzled “ five hundred dollars lawful money of the United States of America of the value of five hundred dollars, a more particular description of which the grand jury can not give.” Under the facts of this case, this is all that could have been alleged with certainty or safety.
It is urged in the brief of counsel for appellant that for the offense of embezzlement of money, the indictment must charge that the money was current money, citing us to Williams v. The State, 5 Texas Court of Appeals, 116; Black v. The State, 44 Texas, 620, and Boyle v. The State, 37 Texas, 359. In some cases such a description might be necessary, but not in cases like this.
There was evidence introduced by the State showing that appellant, without authority, purchased two horses and a set of harness, charging the same to the company. There was also evidence introduced by the State, over objection of defendant, showing that appellant sold the same to Jasper Haney. In this there was no error. This was purchased with funds of
It is objected that the court failed to instruct the jury that they could not convict appellant for a conversion of the horses and harness or for a sale of the same by him. There was no attempt to convict him for either of those acts. This transaction was shown for the purpose of proving that appellant received from this source a certain amount of money for which he was responsible to the company. It went to make up the grand total received by him as treasurer of the company.
Over objection of appellant, the State read in evidence a deed from the company, signed by R. W. Duke as president, and attested by appellant as secretary, conveying to O. H. Milliken nine sections of land situated in Holán county for five hundred and twenty shares of the capital stock of said company. Appellant was on trial for embezzling the money of the company. What legitimate purpose the exchange of the company’s land for stock could serve we can not perceive. In the brief for the State it is urged that this transaction was fraudulent; that the company received in fact nothing for the nine sections of land; that the deed was executed after Duke ceased to be president of the company, which fact was known to appellant, etc.
There is evidence showing that this transaction, to say the least of it, was not at all profitable to the company. If not fraudulent in fact, it was sought to be made so to appear to the jury. There was no fact in this record legitimately bearing upon the case being tried, which was, in our opinion, in the slightest manner elucidated by this land transaction. It was not in itself competent evidence tending to prove the embezzlement, nor did it tend remotely to explain any material fact in the case. Its effect, therefore, was to place appellant before the jury as a corrupt man, capable of committing at least a fraud upon the rights of the company for which he was then the secretary and treasurer.
This land and stock transaction was foreign to this prosecution, and to meet which it is not at all probable that appellant was prepared, and its development to the jury was unquestionably calculated to prejudice his case with those called upon to pass on the really material facts of the case. (See this subject elaborately discussed in The State v. Lapage, 57 N. H., 245; see
While this transaction was not competent evidence, it does not follow that the judgment must of necessity be reversed, for it is not every error of this sort, namely the admitting of incompetent evidence, which works a reversal of the judgment. There must be probability of injury to the accused. On the other hand, when we look to the use which this matter was made to serve, there can be no question of its damaging effect upon the cause of defendant. This being the case, this court will not pause to consider the extent of the wrong, but will reverse the judgment.
Let us view this matter from another standpoint. We have repeatedly read the facts of this case, earnestly endeavoring to understand them clearly, and if we do comprehend them then we are not perfectly satisfied that they show appellant’s guilt with reasonable certainty. We can not with perfect safety and certainty place our finger on. the facts which reasonably show that the defendant embezzled any of the mdney of the company. We are not to be understood as holding the evidence insufficient to support the verdict. All we mean to say is that the facts leave some doubt in our minds of the guilt of the appellant— that the case is not perfectly free from doubt; that it is left at least in some uncertainty, and that the guilt of appellant is not rendered so clear and certain as to render harmless the land and stock transaction. If, therefore, in a case where there is a conflict of testimony, or a case in which the jury would be justified from the meagreness or uncertainty of the evidence, in finding a Verdict of not guilty, and still the evidence is such as to require an affirmance of the judgment by -this court if the jury should convict, the admission of incompetent evidence with the slightest tendency to injury, or to place the accused in an odious light before his jurors, should and will be ground for a reversal of the judgment.
We are of the opinion that under the facts of this case there was error in admitting this matter in evidence, calculated to
Reversed and remanded.
Dissenting Opinion
Dissenting Opinion op Willson, Judge.
I do not concur in the opinion of the majority of the court that it was error to admit the testimony relating to the land and stock transaction. I think that testimony was admissible. This is a case of circumstantial evidence. Every fact which tends to throw light upon the transaction; which is even remotely connected with the crime charged; which, even though slightly,' tends to develop the animus of the defendant—his good or bad faith with reference to the funds and business of the company of which he was an officer, is admissible against or for him. When the inculpatory evidence is circumstantial in its nature, the mind seeks to explore all sources from which light, however feeble, may be derived. In the investigation of such cases, therefore, greater scope is allowable than when the evidences is direct and positive. (Washington v. The State, 8 Texas Ct. App., 377; Sims v. The State, 10 Texas Ct. App., 131; Preston v. The State, 8 Texas Ct. App., 30.)
It seems to me that the transaction with regard to the land, throws some light upon the charge of embezzlement. The land was the property of the company, a part of its assets. Defendant joined the ex-president of the company in conveying this land to one Milliken for the stock of the company, which stock was valueless. Defendant knew at the time he joined in this conveyance, that the ex-president had no authority to dispose of said lands. It was an attempted fraud upon the company, and defendant knew it was a fraud, and the evidence is pretty strong that he intended it as a fraud at the time. A fair inference from the evidence bearing upon this transaction is, I think, that Duke, the ex-president, Milliken and the defendant were acting together in concert, to deprive the company of these lands. Who was to be benefited by the transaction does not clearly appear from the evidence, except that Milliken was getting the lands for a valueless lot of stock in the company, and it is reasonable to suppose that Duke and the defendant were promised or expected a fair divide in case the scheme should succeed. Now, I ask, does not this transaction tend to show
In my opinion there is no error in the conviction, and I think the judgment should be affirmed.