*1 30 requested charge defining reasonable cash market value. We fail to find material charge difference between the
requested given. and the State, one Senters v. Rep. 163 Tex. Cr. 423, 739, 291 S.W. 2d and cases there cited.
Finding the evidence support sufficient the conviction appearing, and no reversible judgment error is affirmed. Dallas M. Parnell v. State 30,391. April 29, No. 1959 Rehearing Motion 14, Overruled October 1959 Rehearing Second Motion for February 24, Overruled 1960 Rehearing 23, Third Motion for Overruled March 1960 Application by Supreme for Writ of Certiorari Denied Court of the United States October *2 Judge, DAVIDSON, dissented. Johnson, Renfro, by J. Edward C. C. & Johnson Renfro Dorsey Hardeman Hardeman, by B. Foy,
Dallas, & Smith and appellant. Smith, Angelo, for San Earl and W. F, Attorney, Alex- William Henry Wade, District Criminal Bowie, Williamson, (Jim) A. D. Allen, M.
ander, K. James James Douglas, Dallas, Attorney, Leon State’s District Assistants Attorney, Austin, for the state. Judge.
WOODLEY, embezzlement; punishment ten felony The offense is years. State, 166 companion Hamman v. is to that of
This a case 301. Rep. .Cr. 2d Tex S.W. upon was sub- which the case
The count of the indictment out in the jury that set form identical with mitted opinion in the Hamman case. year 1955 and
All occurred in of the relevant events indicated, early all dates herein in 1956. Unless otherwise year will refer 1955. mentioned George brevity, Guy Hamman, B. S.
For convenience and Hamman, T. will referred to as and James Valentine be McGhee Valentine, they respectively. Collectively ap- McGhee pellant “promoters”. will referred to as the Company, Physicians Accident Insurance a Cor- Life and injured party, will be referred to the Insurance poration, the Physicians Corporation Company. Investment be called will Corporation. Investment case to the as one of circumstantial was submitted finding and a conviction was authorized evidence jury together with Hamman or acted McGhee Stuart, them, R. A. or all Valentine charge given part principals
That law guilty acting together in the commission all who are makes guilty principals. of an offense large standpoint is in evidence from state’s State, opinion supra. *3 promoters,
the appear stock certificate make it stubs were altered to per
that public stock sold and at $11.00 $14.20 share months earlier was stock that had been issued to the promoters and transferred them. appel-
Additional evidence will be out in set connection with lant’s contentions. principal
A appellant repeatedly contention asserted assignments connection with various of error will be first disposed of. alleged
The indictment herein inwas three counts. The first $225,000.00 theft of from the Company Insurance and the third alleged appellant, together McGhee, count Hamman, Valentine and A.R. $225,000.00 belonging Stuart conspiracy entered into a to embezzle Company.
to the Insurance count, alleging having The second the embezzlement, alone jury, been appellant submitted it is contended that was thereby acquitted conspiring promoters. with the Ac- other cordingly, argues, he tending all evidence to show that conspired promoters with the other embezzle Company “passed out purposes.” case for all
Assuming acquitted stood of the substantive conspiracy, deprive crime of this did not the state and tending conspiracy, including the evidence establish the co-conspirators, considering acts and declarations of his charge pursuance design of embezzlement of the common
33 400, 110 S.W. State, R. conspiracy. 53 Tex. Cr. Richards v. 829; 9 Tex. 432; State, 282, and R. 46 Holt v. Tex. Cr. S.W. contrary authority Jur., 14, pp. are deemed Sec. contention. Appellant is no evidence to show contends there present he com- when the of embezzlement was was offense was, principal if-it as a mitted, and for that reason his conviction accomplice than an rather should be set aside. question presented
To must deter- decide here we first mine where and when the embezzlement occurred. director, Parnell, appellant, vice-president,
Dallas M. member committee of the of Directors executive Board Company. and head of real estate committee of the Insurance president Corpora- He was also and a director of the Investment tion.
Guy secretary, B. Hamman was director and member executive Company, committee of the Insurance vice- president secretary and a director Investment Cor- poration.
George treasurer, S. McGhee was a director and member of the executive committee of the Insurance and was treasurer Corporation. director of the Investment *4 vice-president,
James T. Valentine was a director and mem- of the executive of Company, ber committee the Insurance vice-president was of and director the Corporation. Investment Collectively appellant, Hamman, McGhee and Valentine con- majority stituted control and dominated the executive commit- tee of the board of directors of the Company. Insurance meeting
The minutes of the committee, the executive approving purchase the $75,000.00 note, do not signed disclose the fact that represented it was the obli- gation of one of the committee. banker, The according to these minutes, appeared and offered the sale, note for describing the may security. significant It to note that the bank appel- held note collateral. lant’s as same true notes of promoters the other which Company. transaction was acquired were the Insurance represented by the makers of Company, the Insurance between the and directors of Investment the were officers notes who collateral Corporation, which held the notes as and the bank Corporation’s note. for the Investment assigned the Invest- may, later Be this as the notes were for, again paid pledged Corporation ment and were to secure Corporation, appel- payment bank loans the Investment the Bank, $75,000.00 to First National lant’s to Hamman, a note secure $150,000.00 a to secure and Valentine’s notes McGhee note to Mercantile Bank. National present meeting
According minutes, appellant at to its was Company the of the executive committee of Insurance on June necessary arrange appointed was “to 8 when a committee * * * * * * Company financing repurchase from the Insurance acquired Company had been certain loans which appointed Empire Hamman and were also Bank.” McGhee State committee, being committeeman then on the the fourth President Yost. meeting and meet-
Appellant present at a stockholders Company Insurance on ing of committee the executive August 15. this the matter the minutes of is no reference to
There meeting meeting, committee executive however another September 17, on Company held of the Insurance stated guarantee being: consider the matter of purpose “To * * * Bank, Company the Mercantile Insurance National day August, on passed the 15th per heretofore resolution $150,000.00 payment note in the sum of of a as to 24, 1955, by Physicians August on executed heretofore bank.” Corporation to said Investment unanimously adopted September on 17 re- Resolution was * ** August 15 “in scinding taken action on agreed letter and issued a to the Mercantile *5 purchase guaranteeing would the Bank National Physicians Corporation, Investment $150,000.00 dated note of Appellant promoters and other August 2U, the whose 1955.” $150,000.00 Corporation loan to the Investment the notes secured majority of the executive committee. present and formed were September meeting 17 recite The minutes of this Corporation had committee was acquired Investment advised treasury and had in a sufficient sum its pay payable liquidate $150,000.00 off due and and Bank, the executive committee Mercantile National and that Company liquidated.” the Insurance “felt that said sum should be meeting The at executive committee further resolved said immediately Corporation upon that the Investment called “be pay discharge obligation off and said to the Mercantile National * * * Bank, Dallas, Company so as to relieve the Insurance obligation therewith, in connection that said and letter * * * agreement Company.” be surrendered to the Insurance
Following meeting of the executive committee of Company September 17, Insurance P.M. at at on Corporation discharge Investment pay was called off and obligation by its represented to the Mercantile National Bank $150,000.00 note, its the same individuals met the board of Corporation day. directors of the Investment at 3 P.M. the same promoters majority meetings. constituted the at A. both R. and E. H. were Stuart Owen other members of the executive committee and the board of present directors who were meetings. at these meeting
The minutes of the of the board of directors of Corporation Investment show that board was advised the action of the executive committee of the demanding $150,000.00 paid, that the note and that resolution passed paid. was it be Corporation, Hamman, Investment at least vice- its
president, McGhee, treasurer, appear its anticipated to have September 17, the action that was taken on for a had check already Corporation been issued the Investment and delivered day before, signed by these capacity, officers their official $50,000.00 paid $75,000.00 on the indebtedness to First by appellant’s National Bank. This note was secured note and payment guaranteed by in addition its him. It McGhee, will be remembered that the notes of Valentine Hamman, property, their secured assigned had been $150,000.00 note,
the bank as collateral for the similarly assigned to Bank, note First National and that payment Corporation the Investment of its indebtedness *6 36 corporation collateral
would entitle to a return of these notes. find, and lien note however,
We that on Hamman’s October Corporation and by were the transferred the bank to Investment day by on him Cor- the same the Investment were released poration. promoters that other
It was well known to the paid $150,000.00 note the by fund which could be from the come Corporation the which had the Investment was by proceeds into it for hands from the of stock sold its money belonged Company. This to the Insurance Insurance Company. beginning, that, tending There is evidence to show promoters notes,
it that their was intention of for they per share, at would $1.00 had received shares stock by part larger the stock at a retired the sale sum. voting agreement prior to execution A was entered into agreed in that a certain number the notes which was Cor- placed in with the Investment shares would be poration, escrow per purpose at not than to be sold for that less $7.50 place 10,667 Appellant agreed purpose. for shares share. July. by agreement signed promoters A second per under after of stock at share This was sale $11.00 May 25,000 and while 1 had been oversubscribed share offer being prospectus sold under a second stock of offering 25,000 per share was an shares at additional $14.20 progress. July agreed to agreement appellant
In the and McGhee Corporation 9,605 deposit in the Investment shares escrow with 3,199 6,410 shares. These each; Hamman shares Valentine (except per than for not less share be sold shares were $11.00 ; pro- all parties) block sales were to be consent with written commission, to a to be credited rata; proceeds, less were 20% by the certain repurchase former owners real estate sum to exchange the owners for stock mortgages transferred listing Corporation Company, Insurance the Investment amount, mortgages name and McGhee and Parnell each, $50,000.00 $25,000.00. Hamman Valentine $75,000.00 V.A.C.S.) went (Art. Securities Act to 579-42 579-1 into further stock was September effect no 6. After that date Corporation lawfully could be sold the Investment promoters either unless and *7 requirements complied until with. Act of the were Appellant 8th President September testified that on 7th and Stuart, Yost attorney Company, “reported for group trouble, to a us that it looked like we were somebody going was to have to furnish stock from some source” to oversubscription. cover the began
An September report audit made 19 and final was 2, pursuant November to com- the resolution of executive September mittee of capital 17. The to the audit was restricted structure.
During Kernag- testimony audit, according Mr. han of the auditing employed, “somebody firm asked to us * * * figure out something largely, for them one afternoon it was my recollection, problem prorate among in mathematics gentlemen those five pre-determined figure based on some they us, number of gave proportion shares that as to it between * * * very thing themselves just it was a minor at the time. It was part engagement.” not of our Work prepared compliance sheets and lists were with the
request by the auditors. 'Hamman directed Mrs. Genevive Wat- son, secretary, “to make the transfers set out on that as list.” changed Mrs. Watson then the stock certificate stubs list, totaling shown on shares, 3755 as to so cause it to appear original purchased stock from the Insurance Com- pany, the receipts net to be “used to embark a full scale expanded insurance business” “to fulfill pro- an business gram,” was instead from transferred stock certificate No. 288 which had 9,605 been issued to shares at $1.00 per share.
Certificate stubs of other stock sold other investing public members of the were altered in like manner so falsely represented that the assigned show certificate stock Valentine, Hamman, McGhee, R. A. appellant. Stuart or As a result of these cancellations, falsifications and altera- tions, $175,801.68 Corporation was credited to the Investment 30. September Company
on the books of the Insurance Surplus. Debit was to then Company, Molnor, regular auditor of the Insurance satisfy necessary to
prepared a similar as to the stock calculation portion manner, appellant’s remaining mortgages in like being shares. First $25,886.00 issued
On December 14 check for Corporation National Bank on Investment the account of the McGhee, and signed by said bank. It was Hamman appellant was asked to deliver to the bank. being paid
Appellant objected his note testified that he time; involved, declined and he problem at that that a tax to deliver it. *8 additional appellant
On to Hamman December 28 delivered Company endorsed certificates issued to him the Insurance in blank. pre- used as
Appellant to be testified that such stock “was donating part viously stockholders, a major discussed with company.” their stock back to the First the delivered to The check dated 14 was December day following January 3, 1956, and on the
National Bank on property appellant of his received his note and the release mortgaged to secure it. jury rejected by jury. The was
Appellant’s the defense was doubt: they acquit to if or had reasonable instructed believed misapply, fraudulently (1) intend did not belonging the money embezzle or convert to his own use (2) said Company; misapply and convert Insurance if he did right manner money thought legal act in the he had a but right legal did; (3) a if he that he had which he believed embezzled, money alleged been to have use and deal with they (Hamman, believing McGhee, that he or Valentine and so Stuart) legal right, acts committed the R. A. had said and alleged appel- indictment; (4) that count in the second attorneys employees and of the Insurance advised lant was legal Corporation that he had Company or the Investment alleged, upon apply the and acted such advice right to believing it to be good faith true.
39 credit surplus and entry a $175,801.68 debit The September Corporation as of to accounts receivable Investment by Investment sold explained as “Stock 30 on the books was were stockholders, of which proceeds Corporation individual (See letter erroneously transferred to file).” general voucher original apparently the The letter referred to setting shares which out the copy was offered evidence previous conver- with our in accordance “have been transferred promoters of the listing number of shares sation” and the number cancelled, transferred of re-issued, the number Stuart shares which were and the number of such $11.00 offer) (July respectively. 1 (May offer) stock stock $14.20 to them mortgage promoters released were *9 finding jury was warranted We conclude that the alleged; was committed as the offense of embezzlement design pursuance of a common the offense was committed in during of such intent and con- and intent and the existence fully mortgage *10 completion dependent upon of the offense is not whether he appropriates by single the fruits of his theft act or at sucessive the hand, intervals. in the case of On the other embezzlement defendant, property already rightful and possession of the the subsequent appropriation is of the essence of fraudulent crime. single impulse apply
The record to here shows a obligation belonging corporation payment to the of the to the a number and his There were confederates. which these transactions culminated in the surrender obli- gations parties. respective the the to and embezzlement design completed by common the and was the release of notes obligation debtor, freeing pay securities to the him the to money Appellant present the same. belonging payment from when the paid, the Company
to Insurance was ordered when his cancelled note and lien release of was delivered to him.
We no find error the to the failure the court instruct jury that the accomplice State E. an Witness H. Owen was witness, jury or to submit the issue to whether he was accomplice. an present
Owen participated meetings Sep- tember 17 which payment authorized and ordered $150,000.00 note to Mercantile Bank. He testified that he was present when suggestion was made that stock had been per issued at share be substituted for stock sold to $1.00 public per at share. He further testified $11.00 $14.20 that he declined purpose to furnish stock for such and stated stealing. would effect He be was not indebted to to Corporation. the Investment When he promoters’ learned paid had been
42
ON MOTION FOR REHEARING MORRISON, Presiding Judge. our originally, it received
When this case was submitted In complexity. especially most of its careful attention because opinion which appellant’s our contentions we discussed of those carefully ex- controlling. rehearing we we deemed On have there appellant’s amined convinced motion and remain no error which would warrant reversal. rehearing
Accordingly, is overruled. motion DAVIDSON, Judge (dissenting). I and should have concluded that conviction cannot this conclusion, support
not be In of that affirmed under this record. I following: submit the
Here, rests this conviction the indictment which servant, and charged, effect, officer, an appellant, employee Com- Physicians and Accident Insurance Life by pany converting “two of use America own embezzled his money twenty hundred in current five thousand dollars company and belonged United States” which to the insurance possession by aforesaid into his reason of his had come fiduciary company. relation to the insurance allegation indictment
There was no alleged committing person persons acted with other or embezzlement. 1534, C., trial
In keeping P. with mandate Art. necessary to court elements were (See, also, instructed that four State, embezzling: establish Fellers v. the crime 217.) 138 Tex. 2d Cr. R. S.W. agent person That the defendant
“1. corporation, alleged, employment the terms his receiving charged duty .the of his principal. money belonging to his That he did so receive
“2. principal. employment.
“3. That he received it the course of his embezzled, misapplied “4. That he it to or converted use, employer.” own principal without the consent of his principals, The case was also submitted under the law following charge: *12 “ * * * acting persons All principals guilty of are are who together in offense, principals, the commission an and of jointly whether not, may legally prosecuted indicted or be provided against and such, convicted as the evidence adduced clearly each satisfactorily guilt each. establishes of Where an committed, offense has been the true criterion determining is, principals parties who are ‘Did the act together in the commission act of the offense?’ ‘Was the pursuance committed in intent, pursu- of in a common previously ance of a design formed in the minds of which all united so, and concurred?’ If then that all are the law is guilty, provided alike actually the offense was committed during the design existence in execution of the common all, and intent point actually whether in of fact all were bodily present ground actually on the where the offense took ” * * * place or not. In connection part jury with charge, and as a of that told, effect, were he, appellant they convict if that believed “acting alone or McGhee, together George Hamman, B.G. S. Valentine,
or James Stuart, T. them,” or R. A. or all of embezzled company. money as much as belonging $50 to the insurance
It was charge under such indictment and appellant that convicted. I have charge upon principals concluded that the was neither
pertinent nor allegations authorized under in the contained indictment and under facts evidence. may that, generally
While be true speaking, persons all principals guilty are acting together who are in the commis- crime, sion of a such is not true and can not be true of the crime embezzlement, which is charged the offense here and for appellant has been convicted. only
The lies in the fact reason for that statement members of a crime of embezzle- certain can commit the class class he can ment. Unless one is is member of that within or a guilty not be of embezzlement. comprised
The who bear class of those mentioned is officer, fiduciary injured party, an relation to the such as clerk, attorney an employee, an at or in fact of or an law incorporated company (Art. 1534, C.). P. alleged indictment this case embezzlement, an guilty he, as
was officer, agent, servant, in that the crime of Physicians Life and employee of America, Accident embezzled others, allege company. not indictment did acting, of them was embezzling money were with whom guilty members of the that could class company. of the insurance to con-
Notwithstanding fact, authorized such *13 embezzling persons in vict if he other acted with such words, company. In if the insurance other any Stuart, Hamman, McGhee, Valentine, believed that them, of from the insurance embezzled as much as $50 any of them in the com- and that acted them or with guilty. mission of that embezzlement he would be legal principle law, not a correct Such is not the and is applicable to case. this Quillin 497, State, 187 Tex. Cr. R. S.W.
The case of v. directly one point. there involved was The crime only by of a class—that which could be committed is, members by receiving charged public a under the law with officer public one Druese- public funds. The officer there involved was alleged dow, collector, County the indictment Harris tax who county possession embezzled funds that which came into his of Quillin county of not an officer virtue of his office. was could commit the not a member of the class which and was Quillin county funds. To constitute embezzlement of offense of by Druesedow, principal commission of embezzlement a allegation he, additional the indictment contained the of the Quillin, Druesedow in the commission offense acted with Quillin’s dependent upon guilt of charged. guilt Druese- guilty officer. as the dow Quillin
Upon appeal, as he was not one insisted inasmuch charged class applied to which offense he could not guilty, principal be either alone or as a Druesedow. with lengthy
The contention after a was overruled the court discussion, following: pointing the court out the murder, arson,
“If the in this offense instance had been rape, felony, wholly un- other it been would have necessary any allegation to have made at all about Druese- Quillin directly having charged dow. been could have with offense, although merely committed the Druesedow was principal a reason what he did or It was said. particular because under this law was in a class Druesedow directly who alone could commit such a crime it was necessary allege Then, making he what did at all. after necessary allegations which the indictment did as Druesedow, Quillin only necessary it allege as to did, unlawfully, willfully, fraudulenty that he did act together with Druesedow commission said offense; very language this is the of the statute. No other allegation Quillin whatever as to what said or did was necessary.” (a)
What case holds is that a one not member of the applies may guilty violating class to which the statute by acting class; statute one with who is a member of the (b) a guilty acting non-member the class to be with member in class the commission a crime the indictment allege that must the non-class member acted the class commission; (c) member its under no circumstance can guilty violating applicable only law one be to a class unless *14 principal that he it is shown and a offender member of principal or that he with the that class acted offender who was applies. of the class to which the a member statute conclusion, supporting Jur., p. 332, see 12 Tex. As 773; 597; R. 144 A. L. R. and 131 A. L. R. 1322. L.A. then, case, Hamman, McGhee, Valentine, the instant
In and any them, guilty acting not be Stuart, appel- or could of with embezzlement, being the commission of there lant no parties allegation appel- in the indictment said acted with the crime the commission of embezzlement. lant reasoning, process For the same reason and same parties guilty acted said could not be because he any words, under this or of them in In other the embezzlement. only and appellant, indictment for the offense of embezzlement alone, and he could he for that crime could have been convicted proof upon be convicted thereof that he committed Valentine, Hamman, guilty aiding crime. He McGhee, not could committing Stuart, any them, the em- alleged occupying persons bezzlement. Such fiduciary were not as bring injured company them relation to the so as of them the crime of embezzle- within class to which applies. ment being true,
Such there no occasion to case submit this upon principals, application law of for law had no allegations Appellant’s guilt under under the of the indictment. himself, being proof he, the indictment restricted to com- charge principals mitted the embezzlement rendered the on entirely wholly uncalled for and irrelevant. upon principals
The submission of the case and any law allowing appellant’s conviction thereunder could not have therefore, injure rights effect, other than to by authorizing his conviction a crime facts did allegations not constitute such crime under the of the indictment. undisputed May 8, 1955, evidence shows that on Ham- man, vice-president, McGhee, as as treasurer of the insur- company, payable Empire drew a check Bank ance State $75,383.34 against company in the sum of funds of the insurance deposit on with said bank. May 31, 1955, Yost, president, Hamman,
On as as sec- retary company, payable the insurance drew check Empire $25,205.55 against Bank the sum of State the funds company deposit of the insurance on with that bank. July 1955, Yost, president, Hamman,
On secretary company, payable of the insurance drew a check corporation $124,507.88 against investment in the sum of deposit Empire of the insurance on the funds with the Bank. State day (July 11, 1955), corporation,
On the same investment payable, through the above check was drew a check to which *15 McGhee, treasurer, by Hamman, against B. Geo. S. G. Empire deposit corporation
funds the investment on Bank, payable State to that bank in the exact amount ($124,507.88) of the above check. mentioned
By company these two to checks the insurance transferred corporation $124,507.88, the investment in- which amount corporation paid Empire vestment to the Bank. State every against Each and one of the checks the funds drawn company of the insurance bore the notation that was in same payment mortgages. of first lien notes and
I expressly have referred to the three checks drawn on the company funds of the insurance to demonstrate that those are through checks this record funds any insurance were withdrawn from bank. injury appellant by giving charge on principals demonstrated, is thus for the were authorized to convict if any he acted with the drawers of of those embezzling checks in the funds of the company. insurance it true that While did exception not level an charge to the for the reason that erroneously the case was sub- upon principals, yet exception mitted the law of seeking his principals applied have the law seeking the facts and charge upon the converse thereof is deemed sufficient to call the trial court’s attention the error in submitting the case upon principals. the law of
However, proper exception whether a was not re- charge is, my opinion, wholly served to the immaterial. The authorizing constituting conviction facts not charged allegations the offense or within the of the indictment fundamentally erroneous. discussed, In addition to the error I am convinced that appellant guilty not facts do show of the crime of embezzlement. First, showing let be understood there is no appel- received and converted to own money lant use belonging company. insurance checks drawn payable were not him. The from the checks went to the investment corporation. *16 theory upon tried and the conviction which this case was very clearly pertinently
obtained forth the brief and set for the state wherein it is said:
“ * * * co-promoters Hamman, appellant (meaning and his McGhee, Valentine) Company and caused the Life to transfer primary sufficient funds from the sale its stock to public Physicians Company, to the In- Investment which money personal pay vestment used the off the promoters, including appellant notes of the Parnell.” affirming majority opinion adopts In this conviction the theory accepts states follows: acceptance by (appellant,
“But the these officers Ham- man, McGhee, Valentine) of their and the release *17 says in state to suf- established this than that which proof allega- ficient to convict the must establish the material tions of the indictment and that unless it so does establish 21A, 171, p. 212, Key can Digest, conviction not stand. Tex. and authorities there collated. law, appellant assuming
Under was warranted that the in required prove guilt state would be to and that innocence his or solely depend made upon showing would be to and alone evidence money States,” that he embezzled “current of the United means, according C., silver, to Art. “gold, copper, P. coin, bills, government
other bank notes, circulating or other money.” medium current as charge,
In jury trial court authorized the to convict appellant McGhee, if he embezzled or Hamman, acted with “ * * * Valentine, embezzling in any Stuart money amount of fifty over, the value of Physicians dollars or belonging to the * ** Life Accident of America .” Where is the evidence which discharged shows that the state prove the burden assumed it money? to the embezzlement of Where is evidence which authorized the find that to money? questions embezzled Those are in answered negative facts in this case. There is no evidence appellant embezzled and any converted to his own use “current belonging of the United States” company. the insurance my brethren, State’s counsel admits and in affirming this conviction, agree guilt depends solely upon the conversion him of promissory his own note which was purchased or obtained with funds of the insurance possession the actual the bank which the check was drawn. apparent, therefore,
It is conviction is af- when this facts, longer firmed under law of state these it is no this that the evidence order be sufficient to sustain a conviction allegations must establish the material indictment. But the stop error does not there. The conviction affirmed alleged property the embezzlement of neither described nor in the indictment. always state,
I had it burden understood that was the especially cases, theft or embezzlement describe alleged at least property indictment converted have been sufficiently identify place accused and to on notice against the accusation him. necessary longer
However, rule. All that is this is no now allege personal is that the indictment the embezzlement some property. allegation can any description prove Under such an the state then property personal embezzlement or character. embezzling promissory note is convicted of
This *18 any particular in in nor identified which is neither described the indictment. says
Yes, longer accused of the no exists which one rule the know the indictment offense crime is entitled to from having know charged with committed which he is property alleged to have he is embezzled. the indictment the however, insignificance, when pale into All those matters allege the value indictment compared failure of the The alleged to embezzled. have been note which was the juris- property or embezzled is of the stolen allegation of value penalty in the indictment. The stated and must be dictional mis- either a of embezzlement the offense ascribed renders C., C., P. P. felony. 1422 Vernon’s a Arts. or demeanor P. C. 1534 embodies over a criminal case a trial court Jurisdiction jurisdiction elements, viz., (1) over following three essential juris- person, (3) matter, (2) jurisdiction over subject judgment rendered. particular which was to render diction is jurisdictional If factors elements or one of these lacking, fatally judgment and void. defective rendered Jur., page Sec. Ill at Tex. 386. jurisdiction on indictment this case conferred guilt district court to determine the issue to as embezzling money in from the insurance excess of value $50 It subject determined. was the matter to be —which jurisdiction try upon did not confer the trial court to is, appellant convict of another and different offense —that promissory embezzlement of note. jurisdic-
Appellant’s arrest under that indictment conferred try tion of the trial person court over his him for the offense alleged in the indictment. is, jurisdiction
The first two essential elements —that subject person matter and of trial court shown —were only to the extent contained in the indictment. requisite? judgment
What about the third rendered herein undisputed was based evidence which showed appellant guilty embezzling money, not of the offense of charged in the indictment. the evidence When failed estab- jurisdictional element, lish that jurisdiction the trial court lost any judgment finding to render than other one not guilty. authority
Jurisdictional not did exist which authorize would adjudication guilty some other offense property of the embezzlement of not in the described indictment. being allegation There no indictment the note alleged over, to have been embezzled was of value of $50 jurisdiction judg- district court did not have to render the adjudiciating appellant guilty ment which here rendered *19 embezzling felony. $50, of a note the of value in excess of a
I call attention to I pointed now the rule law which out my dissenting Cage opinion State, in the case of v. 167 Tex. Cr. 355, 364, R. 2d as to the S.W. distinction between the crime theft, quoted of embezzlement and that of I wherein from 18 Jur., Embezzlement, p. 577, Am. Sec. 12 as follows:
“ principle ‘The well is established that an essential ele- property ment of embezzlement is the conversion of law- fully possession property If the is in of the accused. owner, possession the actual or of the constructive * * * larceny Generally, may offense is . it that mere said custody property distinguished possession not does * * * support suffice to an accusation of embezzlement . The gains person possession for this that if reason' rule is only custody, property charge to so as constitute or bare custody possession such not divest the from the true does property appropriation and the under such owner of the ” larceny, not circumstances amounts to embezzlement.’ applicable appellant Such here. note which rule is alleged possession have in the of the stolen was constructive gone company purchase insurance after its funds had into the note, of the he note. If obtained obtained company custody divesting thereof without the insurance note, ownership possession the offense of its well as of the thereby plain he that of theft note. committed obligation of the rested in the The value note pay guaranteeing performance of in the securities possession appellant did obligation. of the note Mere destroy obligation not or its value. insurance obligation. Appellant’s acquisition owned the note and the obligation. destroy thereof not the note did connection, in theft In I attention to the fact that call this only necessary property the thief take cases it Art. appropriate intent to his own use benefit. P. C. guilty To be true crime of embezzlement.
Such is not actually convert must embezzle and that crime embezzler property embezzled. own use that when conclusion, impels me to admit In candor absolute originally I agreed did conviction I to the affirmance this I recognize this record errors not understand pointed have out. here not be conviction should
Being convinced this now forth, I the reasons set should because of permitted to stand say not so. hesitate respectfully
I dissent. *20 REHEARING
ON SECOND MOTION FOR MORRISON, Presiding Judge.
Appellant original forcefully challenges our the conclusion opinion belonged money to that which was embezzled company again insurance to the fact our attention calls promoters’ notes pay checks which were used to off were company drawn on the and not insurance investment entry company. The in the made contention lies answer such in the the insurance company insurance books which showed company $175,801.68 had transferred on its books the sum notation, company investment “Stock sold with stockholders, company proceeds investment for individual erroneously company.” which were transferred to insurance “erroneously Whether or not the funds had been transferred company” question. It insurance is not the was the act of making entry money company this that took from the insurance placed company, and pay it in the investment where it was used notes, charged
off the that made the embezzlement here possible. again carefully
We have considered the entire record and bring agree appellant’s cannot ourselves to contention that no impossible crime has been or that shown would be majority corporate of the officers and directors to embezzle merely they majority. funds because constituted such a Remaining properly disposed convinced we of this cause originally, appellant’s rehearing second motion for is overruled.
DAVIDSON, Judge, (dissenting). endeavoring justify It occurs to me that in the affirmance my of this case brethren have confounded the but issues justify compounded They their now the affirmance of error. by saying that: this conviction making entry
“It took was the act of this company placed it in from the insurance the investment pay it was used to off the notes that made where charged possible.” the embezzlement here appears funds, there an admission that if So now belonged any, pay *21 possession company, of the investment and in no event were such property funds the company its the insurance possession at the time.
The book company. entries took no cash from the insurance The cash company account of that com- was not disturbed. The pany just had money immediately as much after transaction immediately as it had before.
All the company insurance an had or was entitled account company. receivable from the investment money.
This paid was not No checks were drawn on company. entry represented insurance All the awas book- keeping transaction, paper with a simultaneous reduction of paper liability by asset and a equivalent amount. charged money. embezzling The state It is this man with embezzling for that offense that he has been convicted. It is for goes penitentiary. of the insurance that he The evidence does not for show or warrant his conviction that offense. bookkeeping money.
Mere entries are not I dissent.
Ex Parte Clarence Collins 32,287. No. October 12, 1960 Ballard, Walsh, Houston, appel- William F. and Travis lant. Notes measure our in Hamman v. shown liens, assigned secured deed of to the Investment trust exchange Corporation original promoters stock were, according per the Insurance at share $1.00 state, money belonging paid for the witnesses Company, without the consent of the of Direc- Board tors, and released makers. surplus To account for the debit to to the Invest- credit Corporation ment pay obligations off funds these
Notes
notes paid. were Corporation’s the banks after the notes to Investment (before list Hamman received release on October prepared, from which list made “transfers” to be Corporation as $175,801.68 to the Investment was credited released, 30). September lien note and were Valentine’s being Appellant his cancelled note date not shown. received January 3, note properties on 1956. release of his McGhee’s January 13, and lien were released on 1956. charge of the court to convict was authorized any finding part embezzled $225,000.00 of over time within of the value $50.00 period the return of the indictment. of limitation before
until the
notes
spiracy, and
not
consumated
by
them.
conspirators
the
were released to
executed
conclude that
there is sufficient evidence
We further
finding by
principal
acted as
sustain a
present
misapplication and was
at its
in the embezzlement and
commission.
money
appropriation of
or
mode in which
There is no settled
by
principal
the officer authorized to receive
property of the
may
place.
ways,
take
It
occur
numberless
handle it must
appropriation
capable
and the
of
consumated in
manner
effecting it.
many
In
are
question
classes of
acts
cases the
to what
difficulty.
great
sufficient
appropriation
to show an
is one of
long
money
person
property
So
entrusted
with
of another acts in accordance
the terms of his trust
with
may
reference
guilty
thereto he
He
is not
of embezzlement.
deposit
money
name
principal
in the bank in his own
being guilty
without
appropriating
it. But a withdrawal
by
purposes
him for
appropriation,
of his own constitutes
70;
Tex. Jur.
16 Tex.
constitutes evidence of conversion.
38,
Jur.
39.
place
deposit
Whether
conversion took
when the
generally
made or at
the time of
immaterial.
withdrawal
Stephens
State,
489,
v.
49 Tex. Cr. R.
notes and released by the part company-sold substitution of of their stock stock reported attorney he matter the district Insurance Commission. Appellant assigns error, judgment for which the should reversed, overruling of a number of motions for mistrial propounding questions based on cross- examination. In view of the court’s instruction disregard questions regard these we do not matters as prejudicial granted. that a nature mistrial should have been such judgment is affirmed.
notes property pledged pay- of the securities and to secure their upon having paid princi- ment their been with funds of their pal appropriation money constituted the to their own use, evidence their and was fraudulent intent.” definitely appears showing So it there is no and the appears money state not to contend that of the insurance company deposit in in appellant’s possession, on the bank was money possession or that he had received and come into of that company for and behalf of the insurance in the course of employment agent, officer, employee as an insur- company. ance contrary, money possession To the inwas the actual possession bank and the constructive of those officers signed of the insurance who the checks which the money withdrawn, appellant being from the bank was not one of such officers. therefore, apparent, adjudged It is is here guilty because, be of the crime of embezzlement as an officer company, permitted he the insurance the funds of the insur- acquire company ance be used to his note from the owner thereof, viz, corporation this, the investment an under —and charged indictment which converted to his own belonged company. which use insurance here, words, effect, judicially it is In other determined proposition a correct announced as of law that when a cor- corpor- of that poration purchases an with a check automobile is thereafter signed and that automobile ation its officers may prosecuted officer stolen one of those officers the money with embezzling stealing for and convicted embezzle- purchased, than the rather the automobile automobile, ment or theft of the itself. holding agree. I not To such do not and can thoroughly In place, the first I rule of more know no law
off notes to and were in used to