*1 Beports. Texas Criminal 322 [June, Pye E. v. The F. State. 25, 2448. June 1913.
No. Decided 3, Rehearing denied December 1913. —Embezzlement—Indictment—Description 1. Instrument. note, Where, upon trial a of embezzlement of the same was described $8000, payment lien “One vendor’s the the the indictment and of $8000,” note, description the a value same was sufficient and there Davidson, motion overruling Judge, was no a dis- quash. Presiding error senting. -—Same—Evidence—Value—Appropriation. 2. admitting Upon note, trial of there no error in embezzlement of indictment, prove testimony note was finding the maker after the note in given.to get another note which was sued it, pay party $500 and that maker result holding said had as Davidson, Presiding Judge, him. of the dissenting. on the suit rendered 3.—Same—Evidence—Consent. admitting note, in not trial of erred Upon embezzlement of dealing be- testimony to show consent of the maker of the note and belief the defendant had parties was to lead tween such as Taylor Following to use the note he did. permission as maker’s other cases. Texas Grim. Intent—Temporary Appropria- —Same—Charge of Court—Fraudulent 4. tion. note, only Where, embezzlement the defendant claimed upon trial of aof same, appropriation of the showed that temporary a defendant and that control, placed beyond hypothecated the and thus had substitute collateral to secure maker same had to another note, thereby temporary appropriations was not the issue of the release of raised, issue. no the court’s failure to such there error submit Presiding Judge, dissenting. Davidson, Instructions—Innocent Holder—Notice. 5.—Same—Additional note, Where, embezzlement of a the court recalled the upon trial of parties third without instructions as to innocent gave them additional and notice, etc., Davidson, dissenting. Presiding Judge, reversible error. there was no Defendant—Consent—Charge —Same—Knowledge Court. 6. the issue was raised that Where, embezzlement of upon trial of appropriated the defendant of the note knew time dealings the maker so; parties such between the did and that that he same to permission to use the note maker’s defendant to believe lead the jury. did, submitted issue have been Court Harris. Tried below District from the Criminal Appeal Bobinson. Hon. C. W. before the embezzlement; two im- years a conviction of penalty, Appeal penitentiary. prisonment the case. states
The opinion Meaclvum, and E. T. Branch and McDonald Storey & & Lane, Walters for appellant. cases opinion. Cited Pye v. The State. IdUhl Lane, General, and District Attorney Maury, Richard E. Assistant State. *2 Attorney, Presiding Judge. first the charged was in GIST,
DAVIDS note for the of eight vendor’s lien payment theft of one count the dollars; and the value of thousand eight of being thousand dollars and note. with embezzlement óf the charged in the second count the it not describe sufficiently is attacked because does indictment be, to “One in note. The indictment both counts charges the vendor’s lien thousand dollars and eight note for the payment is indictment value of the eight thousand dollars.” contended not sufficient in that note was not as demanded the of the description allege the terms of law. The not undertake to indictment does execution, whom date its nor the note was nor executed date its it nor maturity, the date when was made payable, nor it to whom vendor’s nor what land or payable, upon to held, situated, lien was nor in what it nor county was any attempt describe the which it land, in county house nor situated, nor the where the nor matters place note payable, which thereon description would enable conviction plead'a appellant bar of a offense. for the same subsequent prosecution alleged case of Calentine v. Texas Crim. Rep., 154, ques decides tion favor of contention. This was followed Pat appellant’s case rick v. we those authorities Under are this indictment not sufficient. Thus far cases these opinion overruled, not and in the writer ought have not be. announce correct This note before They doctrine. been, grand jury evidently, or could have because was on trial of the case. could note description such They given *3 first lien on thé which overcovered the value of property the property.
The evidence shows note, Hill, that the maker of the was a carpenter, for three working or three and one-half dollars a and that he day, gave the note for eight thousand dollars to on which there was a Perry prior lien that covered practically the value of the property. Perry testified that it was a bona sale, fide and that said he afterwards returned to Hill the land Hill as first and that first paid by payment, lien was not note, when Plill released evidence was gave while the other that was an accommodation without consid- paper given Hill by eration in order to enable to borrow Perry money thereon, that the note had been Mr. already assigned Taub and was no testified that not value. he did consent to Perry give appellant to Goree, the note with but appellant testified that put up would Perry let him do he wanted usually with collateral and anything when was note surrendered back Goree that Perry was by per- Perry time, that at that satisfied was not fectly note worth a cent. that, was testimony in favor of Appellant’s being guarantor the Wash- Bank, he ington County deposited note Goree, with in temporarily time, order Goree from him at that prevent suing and that he only without temporarily, note put up any intention either to perma- it or nently appropriate to cause loss or to Perry defraud Perry; that that he knew note was a mere no accommodation note and of value, and that Mr. Hill so, him would told on the stand go that was deny and that knew that paper, Mr. had not sold the and that Perry had al- property note duplicate Taub ready assigned Mr. and the note was no value, and that usually would let him do Perry anything he with the wanted do. collateral, and that when the note was surrendered Goree Perry by that Perry satisfied, perfectly note the first place was not worth a cent and a second note. lien Goree testified that surrendered note to Perry when he received the note of appellant Perry endorsed no apparently satisfied and Perry made had stolen his claim note. Mr. Taub testified that Perry knew of existence of the Goree’s hands when he spoke to n Pye y, The State. 191Jh~\ it, him about did be Perry appear when surprised told him. Taub further testified that Mr. if first lien was enforced little, there value of note. very any,
The evidence further discloses that Perry had sold or mortgaged land to show was sought connected this rather there was debt over that land for thirteen dollars, thousand Houston, situated in and was not in fact more worth than ten if that. dollars, thousand in- thirteen thousand dollars debtedness hanging over it this eight thousand dollar created on this worth property, less than ten dollars, an indebtedness of twenty-one thousand dollars. The State was permitted, over objection of appellant, prove after the finding case, indictment sued July Perry on the note given get from Goree and had to pay five dollars hundred as a result of said civil judgment rendered on suit. It seems, hoAvever, the five hundred dollars. There appellant paid there had been other between dealings in which accommodation As we understand figured. paper record this on which all this indebtedness of thou- twenty-one sand dollars was created was accom- after rid subsequently getting lien, modation sold dollars. eight thousand This may perhaps sufficient statement of the to review case some or all of the questions. The five hundred dollar note on the paid by Perry really paid appellant, or least five hundred paid dollars by appellant. *4 offered to prove by that he was not out on anything itself,
the note and that witness him by appellant never had arrested or made any about his complaint having the note in ques tion to prevent the suit filed being that appellant, and seemed entirely satisfied with his conduct in when the matter he endorsed the substitute note him to return of put up by secure the which question, was the court. testimony think, excluded We with by out offered, reasons was stating the for which this this testimony should have to State, 377; 50 Texas jury. Taylor v. Crim. gone Rep., 201; State, Jenkins v. Crim. State, Texas Farrar v. 29 Texas Rep., 250; State, Crim. Stanton v. 269. App., Rep., Crim. show,
The State was over permitted objection appellant, four months that Perry after the indictment was had to presented pay cash, dollars in obligation five hundred order be released Goree, objection on substituted security given being to the indictment was same was subsequent finding proof acts between to defendant .of other that same was parties, prejudicial indict- Perry subsequent a loss showing by presentment of a claimed ment, and Avas the civil court. is proof value, hurtful issue of acts done other by on of the indictment could bind make after the presentment parties value, conversion, note, supposed valueless at the time become of It is liable to mislead the contended jury. appellant and same Avas by Beports. Texas Criminal [June, State, 65 that this is He Nesbitt v. elementary. cites proposition 944; Rep., Hatfield v. 67 S. W. 144 S. Rep., Rep., W. 46 Texas Crim. are of opinion Richardson We 110; This authorities, contention of under correct. that this appellant, transaction, if there been conversion was any after the long use. The value took the for his own the time at its time of conversion. by standing the note was be determined fundamental status at time. rule is fixed that The law intent and embezzlement, constitute the fraudulent in order to theft or must intent is, must in theft coincide, fraudulent n with embezzle exist If a taking. charged time party time of conversion, ment or theft then fraud must at the exist by admitted, course, conversion. after the Appellant, of this did not cure the error could, had to meet the best way all its admission. The authorities are one on this way proposition. court to instruction: Again appellant requested give following intent, fraudulent "The of the offense of embezzlement gist evidence, convict defendant from the before can must believe you you doubt, embezzlement, belond a reasonable or con misapplication version, intent, if was, there fraudulent any done with defendant had the intention to use the vendor’s lien merely temporarily without intention to defraud or if have rea you question, any This this, doubt as to then should the defendant.” yon acquit sonable and in motion ways, reserved in both bill of exceptions is properly trial. is that this charge for new The contention the evidence and was the defendant’s defensive demanded called attention correct the court’s necessity presenting on his omitted charge affirmative defensive and the theory, having main theory, in his his defensive charge give any charge presenting the refusal to error should be held give charge prejudicial to be reversible. bill sets out exceptions so sufficiently We are of contention parties. that his intention was use the testified given. Appellant and without idea only temporarily defrauding Perry; note was of no value,
knew the affirm corroborated other did the court testimony, nowhere his defensive atively proposition is fundamental present theory. *5 record, defend that wherever defensive presented by ant entitled a distinct that issue and affirmative presentation them order to and conduct prevent defense ignoring there was a verdict if to be true proper find evidence or they reasonable doubt of it. authorities: v. following Reynolds See State, 412; State, App., Texas 9 Texas Crim. 8 Crim. Greta v. App., 84; State, 15 Texas Crim. v. 18 429; State, Jackson v. White App., State, 599; 57; Burkhard v. 18 Texas Crim. App., Texas Crim. App., State, State, Texas 12; v. Crim. Irvine v. 20 Texas Crim. 23 App., Bond 290; State, Texas Williams v. 180; v. 24 Crim. App., Smith App., State, 342; v. 24 Texas Crim. State, Thompson Texas Crim. App., 24
Pye 337 v. The State. State, State, 8 Texas Crim. Erwin v. 383; App., 112; Dones v. App., 700; State, Texas Ainsworth v. 11 Texas Crim. App., 10 Crim. App., State, 536; State, 13 Texas Crim. Bonner v. 29 339; Neyland App., v. 456; Texas 223; State, v. 30 Crim. Nalley App., Texas Crim. App., 472; State, Texas State, 30 Texas Crim. Carter v. 30 Hays App., v. 431; 551; State, 33 Texas Crim. Wheeler Hargrove Rep., Crim. v. App., State, 350; v. 35 Texas Crim. State, Wright 34 Texas Crim. Rep., v. State, State, 552; Carver 36 Texas Crim. Winters v. 470; v. Rep., Rep., 377; Crim. 582; State, 37 Texas 50 Texas Rep., Taylor Rep., Crim. v. State, State, 59 69; Mortimore v. 60 Texas Carden v. Rep., Crim. State, 501, 362; v. 37 Texas Crim. 129 W. Rep., Rep., Campbell S. 572; State, 829; Texas Treue v. 44 W. Strickland Rep., Crim. S. Rep., 720; 20; Texas State, State, Rep., 47 S. W. Driver v. 48 Crim. Rep., v. Texas State, State, Texas 44; v. 49 Crim. Freeman v. 52 Golightly Rep., 360, 500; State, v. Texas Crim. 68 W. Crim. Cain S. Rep., Rep., State, v. 175; 482; Henderson Rep., Sowell v. Crim. Rep., 432; Harris Texas State, 1 Texas Crim. v. Crim. App., Rep., 564; Scott 153 W. Rep., S. testified he had no intention of
Appellant defrauding Perry note; him of the that he use thought he would depriving permanently and return it him when told that Hill had temporarily necessary; note; it was an accommodation it was an him knew accommodation had not sold the that he property; deposited the paper; relief; that the no simply temporary with Mr. get Goree is evidence not only by value. There but other an effect that the note was accommodation note. It seems to be shown the State as well as uncontroverted, evidence, defendant’s an given for which debt property existing hanging over for thirteen thousand dollars. This note was for thousand eight dollars, and the value of covered these liens was ten property thousand dollars or less. It was Hill was carpenter, dollars' three cents and that Hill fifty day, employed by Perry dollars on the eight executed this note to Perry prop- it from it was above mentioned. testified he had Hill that erty Appellant knew as a matter of accommodation and he fact himself it note. and some the facts we testified was sustained extent in stating detailed show he to some already Goree he was the note with Goree only temporarily using to.prevent Bank, suit him in favor of Washington bringing County evidence further shows he was pressed financially time, and that a suit at that might consequences time be of serious very him, stave off litigation this note he could by using temporarily and in relieve together the meantime his financial matters gather of his take substitute some outstanding paper up all the note with of the note he used Goree. In Goree place tem- cases where was an issue whether it is or converted to sub- porarily permanently, duty cases, under all mit the issue to the further rule jury. *6 Reports. [June, Texas Criminal so far as aware, we are where the only temporarily and not a then would permanent deprivation, not be theft and if the believed defendant’s side of jury the case under circumstances, such would be entitled to an court acquittal. The the State’s charged side give of it but refused to the defendant’s it. A side of list of some the authorities bearing use will found upon be collated temporary Law, Branch’s Criminal section theOn of intent see Branch’s Criminal Law, section 779. In case, 50 Texas Crim. Taylor’s 377, in Rep., to this regard this court said: “Where phase law, the State seeks a conviction, whether under the statute of theft general under that of or theft, ap the conversion fraudulent making bailee by propriation and must the intent to deprive the owner exist conversion, time taking, at the time of the before stated. Under the intent is co the fraudulent general statute existent with the by taking. Under the statute to regard bailee, it must coincide Under both with the act of conversion. statutes the fraudulent intent must neces to appropriate permanently exist. sarily If ring on the money borrowed intent to redeem this seem to exclude purpose ring, idea of fraudulent intent to the owner of permanently deprive if not aof fraudulent intent In the case of property, altogether.” 501, State, Carden v. 59 Texas Crim. doctrine was laid the same Rep., down denied, in regard threats, although were the defendant they yet to a charge entitled his submitting theory the case. Freeman State,
In
v.
52 Texas
testified
Crim. Rep.,
facts,
certain state of
which statement
contradicted by prose
de
cutrix. The court failed to charge with reference
appellant’s
fense, which was that his intention was not to assault the
girl,
“This
secure from her the
merely
case:
ring.
court said
was appellant’s affirmative defensive
and one he
supported
We are of
testimony.
his
should have
charge
distinctly
It is fundamental
must
State that the
given.
charge
case,
set forth
law
to the
and this must
determined
be
applicable
.
.
proposi
adduced.
.
is further a fundamental
evidence
every
tion
law that
must
embrace the law
applicable
of the case made
deduction
phase
legitimate
the evidence and
to be drawn therefrom.
.
.
.
The fact
be
may
as the
such
untrue will not
change
believe
rule. Under
our system the
constitute the
jury
facts,
judges
credibility
witnesses and the
weight
testimony.
their
is also
given
equally
as well
in this
settled
State
the accused is entitled to a
distinct
affirmative,
merely
implied
negative, presentation
evidence,
arise
in order to
issues which
prevent
conduct them a
defense,
ignoring
they
verdict
proper
Taylor
true.”
State,
find this evidence
v.
50 Texas Crim. Rep.,
State,
360;
Cain
49 Texas Crim.
377;
Rep.,
Dyerle
State,
v.
v.
W.
68 S.
174;
State,
v.
“You are hands that an in the instructed accommodation note placed binding of an without is as notice, just innocent third for value person, valid as the maker to payee if the consideration had passed at maker the time the note was the made could be enforced notice, without endorsers the hands third of innocent persons the just as though same it was transaction. a bona fide “You are further that has been a note instructed the of original substituted in without the hands of innocent third for value parties notice, endorser, is valid the binding obligation on maker and the maker although original. have executed substitute for may “You are further instructed that the value arriving introduced in evidence all of you take into consideration the facts and circumstances and that adduced before to be you, decided its note, as to the is at the time the by you, value value defendant, same converted or find you misapplied beyond converted, reasonable doubt fraudulently misapplied it was its not value at time.” any subsequent
We are of the contention this charge is correct that exceptions not have been There were taken and reasons given. many charge this This assigned charge wrong. only why presented more favorable to the State our it was made crite- than entitled to have. charge as of innocent value, concerned, rion of so far the hands appellant theories, eliminated all of his defensive absolutely third parties, on correct charge weight propo- and it was a of evidence. It is a innocent third that an accommodation in the hands of sition law consideration, available, that want of is, subject is parties its as accom- hands with notice of character parties as it is but from only There was evidence modation paper. effect that trial him to the sustaining on the other sources adduced course, it. Of knew was an accommodation paper, that in the hands of discussion, parties settled well for law too Appel- would be valueless. transaction the paper to the accommodation one the parties Perry, agent lant was the in his and stood shoes in agent that he double reason knew, positively agent, acting of the paper, disposing Repoets. {June, Texas Cbiminal testifies, least so paper paper was erroneous. did with Whatever he paper agent shoes, He stood in Perry’s Perry’s he act. far so as his Perry’s is concerned he was agent. holding paper If stolen of its value, note from want Perry’s knowledge he would If at the time he not have stolen converted it anything. was value- less, had not anything. embezzled sometimes a little difficult *8 a to fact facts fix the show the fraudulent or which or taking in But that conversion embezzlement. wherever fact exists in embezzle- ment be would the it from conversion. If converted appellant as Perry the indictment then he converted that he charges, knew to be paper an accommodation or believed to be and paper paper, which the facts would accommoda- justify the was an believing tion He it converted as the of paper. therefore it agent Perry, Perry’s when it. is not with swind- property charged he converted He Goree, ling but is with court’s charged The embezzling Perry’s property. charge would indicate the to to so instruct seems have been jury, them should fix they appellant’s so far as the value guilt, concerned, is the hands Mr. does not paper of Goree. stated, even the converse of the before proposition. Appellant, charged with He is not with embezzling Perry’s property. charged it after it into embezzling the hands third nor could got they of parties, fix the hands criterion of innocent third as the criterion parties of Perry, value hands of for whom appellant agent alleged whose he is did not have embezzled. Appellant a cent obtain lost nothing. Perry is
There another in this of evi- There is question phase ease. dence all through the record is valueless, note and there of the fact that evidence did Perry agreed to all virtually appellant Mr. knowledge had of it. Taub testifies it he knew and apparently not when told of Goree testifies surprised things, condition to the same he it was all thing, appellant thought testifies right Perry; with he had been in habit of col- Mr. handling Perry’s notes, and did lateral it at and went Perry express any surprise with and executed another note and appellant appellant Goree took it. eight dollar and canceled up note question said he it. it. This Goree canceled testified that he canceled Perry think, we is from value charge, wrong another fixes the standpoint. of in the hands not in innocent third the hands of parties Perry there through agent, If had stolen appellant. no of fact it valueless, is would have been because he would have that he and knew the stealing been paper valueless, theft; time was embezzlement is but different form of the time must have a value. Appellant of makes the contention that where value it necessary alleged, value, must specific show some necessary prove failed, in judgment, has our in this case the State prove value over, dollars or worth fifty in fact of any Pye v. The State. im-i correct. We are We contention opinion value. are of to Goree did not passing by appellant did not belonged of the note lend Perry; enhance the value the note into value Perry’s alleged property. passing that he was not with the Goree, conceding acquainted the hands fact have obligation created an might an accommodation paper, to make thought the note available hardly against Perry, obligation The creation Perry’s property. not constitute embezzlement. received consideration Appellant does no Goree, time, for the note with of an extension of leaving outside Mr. to sue. rather There was promise money passed; Goree’s no there was shown. Mr. Nothing no value passed Goree sue. extension except simply not to had an promise of the debt which he received nothing guarantor; If sold for cash consid- could convert. Goree appellant had use, not have eration own he would retained money been note. embezzling may perhaps guilty He guilty embezzling Mr. swindling proceeds Goree or possibly note, but not of itself. embezzling *9 to us be contention, also makes another which seems that
sound, value of any State that the note was ever failed prove in the hands show con- either of Goree. The facts -Perry, that Hill that clusively thought any was be insolvent. would hardly man with financially business any qualification and accountability did, his to Perry, lend name as the record this man Hill under shows In Hill was a carpenter the circumstances. it is that simply fact shown and cir- dollars and cents a working wages fifty day, three fictitious floating and was cumstances Perry fully bankrupt show The security upon loans order his financial schemes. keep up is concerned. nothing the note was based was worth so far dollars, shown, it is yet ten While it worth Perry said thousand himself, first lien that dollar there was thirteen thousand Perry by record, note mentioned in thousand dollar besides the eight upon rid accommo- that of those got his after he testimony show goes itSo will thousand dollars. liens he sold eight dation property short the first releasing dollars of fell be seen five property abe seems to testifies, respon- lien Taub this record Mr. security. cents, that man, note “was not worth eight sible business Perry worth knew of the and knew nothing.” Taub familiar with Hill; at shows was doubtless knew least testimony transactions. all the circumstances those Besides testimony, conclusion, indicates but safe the evidence for one (cid:127)case, even us, that the note is, any evidence it occurs to worthless, considered, State instead may from which doubt a reasonable value any specific beyond of proving Mr. it. may Perry Mr. were Pye run- absolutely disproved rather testimony together. these matters indicates that Perry ning financial extravagant in some transactions "pretty with- indulging Beports. Texas Criminal [June, it, familiar, least to some Pye out much backing had facts, assisted Mr. in these extent, with those Perry and this collateral, accounts for the reason his, Perry's matters, handling at the transaction between surprised Pye Mr. was not why matters that have out cropped all these other in the evi- Goree, and indicate, exist, evidence would dence, if those facts strongly or was Pye authority had standpoint, justified believing to handle and do with it as he had he pleased. authority however, to the case, This submitted Under phase jury. all the of this case it serious circumstances be a whether the State has a case show embezzlement Pye Perry’s property amount, valueless, is, that the any any of a Pye valueless could not be piece of embezzlement because paper of value. of want
For the reasons indicated the and the cause is reversed remanded.
Reversed and remanded. HAEPEE, Judge. case, do While to the reversal agreeing I not concur in that part defective, the indictment opinion holding but hold the indictment invalid. do not that the agree
I court should have submitted the issue tem- shows that porary appropriation. Pye hypothecated note with it beyond control, Goree placed and Perry (Pye’s) to substitute other collateral had to secure the release the note owned him and which Pye to his use, own think the appropriated evidence admissible having $500 was on two pay phases first testimony, tending $8000 show the value of the note at of its the time appropriation, and, secondly, there was to show a tending then this cir- temporary appropriation, was a cogent cumstance to prove permanent appropriation first had *10 put other collateral up $8000 to get the re- note appropriated Pye leased, and then to this collateral get released had to $500. pay There are other matters that might be mentioned but agreeing the conclusion reached, I concur in case, a reversal on especially grounds that whether or not knew the time Pye appro- priated thereto, and, consented dealings secondly, if the between the parties were such as to lead Perry’s believe he had Pye permission to use the then this issue been sub- property, mitted to the jury. Presiding Judge. PBEUDEBGAST, In my indictment I think the good. trend of all the later cases is to that effect. seems to me from the statement case by Davidson Presiding Judge that it must be reversed. The time for adjournment for this term of court is so at hand, near and there so much other being business pressing to be necessary disposed of before adjournment, a precludes study special At date, of this case now. a later even if the reversal stands, may we Ex Paste Broussard. 1914-'] necessary questions arising various
write further herein on the be decided herein. conclusion consideration we reach may thorough may reversed. should not be
the case 3, December 1913.-—Reporter.] denied [Rehearing June, hands of until 1914.—Re- case did not reach Reporter [This porter.] Ex Parte J. J. Broussard. 3, 2759. Decided December
No. 1913. Rehearing April 1914. denied —City 1. Charter and Ordinance—Constitutional Law. City making An of Beaumont any person, ordinance of the unlawful for corporation persons or slaughter association of to establish or maintain any house, Beaumont, soap-making City bone-boiler establishment or or stable, brickyard, any three without livery pens horse and stock lots within a distance Beaumont, or any private City hundred feet hotel residence in council, obtaining permit city first from the is constitutional. Davidson, dissenting. Judge, —Same—Stock 2. Pen—Number o£ Cattle. provisions Other ordinance providing that pen,” said the term “stock therein, should any include wherein more lot than six of cattle head kept penalty Davidson, thereon fixing were constitutional. Judge, also dissenting. 3.—Same—Fourteenth Amendment. violative of the Said ordinance is not Fourteenth Amendment of the Con- States, stitution of the United nor provision other Following thereof. S., Louis,
Fischer St. 361. U. —Same—City 4. Council—Arbitrary Action—Presumption. city That the council arbitrarily authority act granted under does
not render the will act within deem The presumption ordinance void. of law is that the council spirit and the intention of the law in such they manner as necessary public for the health city. and welfare If they act do arbitrarily, proper such action can revised tribunal. City —Same—Discretion of Council. It is a discretion confided that pub- must be in the exercised interest welfare, public lic public peace, health and the if the facts should show permit that in the refusal purposes license no such incentives were council, behind the action of application then in a writ of mandamus tribunal, made to the proper compelled council would be issue license; but is a matter for the civil courts. 6.—Same—Constitutional Law—Number of Cattle. requiring An ordinance person desiring keep *11 head more than six of cattle within one enclosure within the per- city limits obtain a must mit so from city to do void, council any pro- and is violative of
visions of States; the Constitution of nor of the United and if said council power exercise arbitrary seek in an and unreasonable manner, lie, a writ of mandamus is a civil and not criminal proceeding. notes identified as would have from other and so identified show the note which the was based as very prosecution by giving done, it. This some of it that individuate was not description indictment failed to a better de grand jury allege Therefore, than could alleged or ascertained. given scription think under these authorities this indictment we insufficient. Appel lant was convicted and two for given years embezzlement. Goree, A brief statement the facts perhaps necessary. Mr. Bank, for the attorney Washington for collec- County tion an indebtedness for seven thousand five hundred dollars Rubber & Shelp Supply Company, appellant guarantor. Goree was about to suit on asked bring indebtedness, said is, off, so, him to hold to do Goree demanded whereupon him additional he, guarantee. Appellant thereupon appellant, give him, suit, in order to bringing turned over prevent dollars, Hill, and signed vendor’s lien one eight note and which endorsed note by Perry, L. Perry, to H. payable testified that over he had turned Perry claimed be embezzled. other notes to appellant, lot of on which he quite this note Beports. (cid:127) Criminal {June, to borrow him, money Perry, appellant subsequently reported him lost. He that this note was returned the other notes to Perry. when he heard the note was lost that also testified he had Perry Hill to its another on face same the original, execute and that on money borrowed from J. N. Taub, duplicate merchant of Mr. Houston. after Taub ascertained Goree held the Shortly other with his. note, which was identical He called on Perry the other get note out of the way, Perry Goree, went to appel- lant gave Goree another note which was endorsed by Perry, note which was the indictment subject of this was then over turned by Goree and Mr. canceled. Taub testified that knew existence of note in hands him, Goree’s when spoke did not to be when appear surprised him, told and that he, Taub, purely accommodation held paper,