32 Tex. 763 | Tex. | 1870
The prisoner, Thomas M. Riley, who has brought up this appeal, was indicted in the Criminal Court of Galveston county upon a charge of the embezzlement of $10,000 in gold coin, of the property of J. J. McKeever and R. Yan Slyke, who composed the company, called the Phoenix Express Company. This money was placed in the possession of the prisoner, who was acting in the capacity of agent, or messenger, of the copartnership of McKeever & Yan Slyke, or Phoenix Express Company, to be transported by him on the railroad from Galveston to the city of Houston, in the State of Texas.
It is contended by the counsel for the prisoner that as the money was shown by the evidence to belong to Ball, Hutchings & Co., who had consigned it to Adams & Hearn, of Bryan, to be transported by the Phoenix Express Company, composed of J. J. McKeever & R. Yan Slyke, to the town of Bryan, in the State of Texas, the charge in the indictment that it was the property of McKeever & Yan Slyke, was not supported by proof of property in Ball, Hutchings & Co. This is not a legal sequence from the facts stated and proved on the trial. Though the absolute right of property might be in Ball, Hutchings & Co., there was a qualified property in McKeever •& Yan Slyke, of which theft, or' any other felonious act in relation to it, might be the predicate as against them. A felony may be committed, as well upon the qualified as upon the absolute property in personalty. McKeever & Yan Slyke, from the proof, were at least the bailees of Ball, Hutchings & Co., and possessed an interest which the law equally protects against knavery and crime, as that of the absolute owner.
Under an indictment for an offense of this character, the specific allegation and proof of the particular description of coin were entirely unnecessary. The accused admitted the trust committed to his hands of a determinate value of gold coin; and from the nature of the transaction no proof could be adduced of the identity, and the allegation was wholly unimportant.
The reception of the money as agent or messenger of the Phoanix Express Company, or of the copartnership of Mc-Keever & Yan Slyke, and the failure to give even a feasible account of the money of his employers which had been
The facts proven on the trial tended most strongly to intensify this presumption of the law. As agent, or messenger, it appears he received the money in the morning; it was •deposited forthwith in the chest prepared for the transportation ■of valuables by the railway. It was locked up; the messenger had the key. It was carried by a drayman, the prisoner accompanying it, to the railroad depot. It was transferred by him and the drayman to the express car, where, by the regulations of the company, it was the duty of the agent, or messenger, to remain with it. His own account of the matter, however, is: that, after it was placed in the car, he left the car and went into the depot office, just opposite the door of the car, where he remained about twenty minutes, and when he returned he saw that the chest was unlocked ; and, yet, incredible to tell, his curiosity was not excited, his suspicion was not sufficiently •aroused to prompt him to make an examination to see that all was safe. And although, as it appears by other proof, that he delivered a way-package of money, which he must have taken from the chest, he made no discovery of the abstraction of the money bags until he reached Houston, where the contents of the chest were checked over to the agent on that part of the road from Houston to Bryan, the point of consignment of the money. Such an incredible, contradictory and improbable story as -the prisoner told of the matter, to account for the disappearance of the money, serves only still more to fortify the presumption of law raised against his fidelity as an agent.
This court can see no good and sufficient reason for disturb
on the rendition of the-foregoing opinion, applied for a rehearing, urging the following-grounds, with others not necessary to be presented:
1. The indictment in this case is not for theft, under Art. 2423,,. Pas. Dig., but is an indictment for embezzlement, under Art. 2421, Pas. Dig. Hence, in indictments for theft, an allegation of a qualified property in a person might be sufficient, for-by the express letter of the statute, “ it is not necessary, in. order to constitute theft, that the possession and ownership of the property be in the same person at the time of taking.”' (Art. 2386.) And in the very definition of theft (Art. 2381)'-, the statute expressly provides that “ the taking of personal property belonging to another, from his possession, or from the-possession of some person holding the same for him,” etc., constitutes theft. But we have no such statute relating to embez- • zlement by an agent or clerk. An indictment might have been drawn against the defendant as for theft under Art. 2423,. and a qualified property and possession laid in the Phoenix Express Company and an absolute property in Ball, Hutchings & Co, But such is not the present indictment, and it is most respectfully and urgently and confidently submitted that the proof in this case is wholly insufficient under the present indictment. If the proof should establish the defendant’s guilt of theft, he surely could not be convicted for that offense under the present indictment for embezzlement.
That the distinction and difference in Arts. 2421, 2423, Pas- • dial’s Digest, may be the more apparent: suppose the prisoner ■ to have been acquitted under the indictment drawn under the-first of said articles, such acquittal could not be plead in bar to* * an indictment drawn under the second one of said articles.
It must also be borne in mind that embezzlement is not a
1. We must most respectfully invite the attention of your honor to some other points; and they are these: The possession of the money or property of his principal or employer, by an agent or bailee, although unaccounted for by such agent or bailee, raises in law no presumption of guilt of embezzlement. (See Rex v. Smith, Russell & Ryan, p. 267.)
The court, composed of eleven judges, use this language: "That the conviction was wrong, on the ground that there was
The “ indictment must describe, according to the fact, some of the identical goods or money. So the evidence must establish the embezzlement of the specific articles described.” (2 Bishop on Criminal Law, § 358, bottom p. 199; Rex v. Tyers, Russell & Ryan, 402.)
3. Under our statute it is not only necessary that the particular species of coin should be laid, but some of the pieces must be proved as laid, and it is not sufficient to prove a general sum in mass.
In Regina v. Bond, 1 Cen. Br. Cas. R., 517, the court say : “ So, where the charge in an indictment was of stealing seventy pieces of the current coin called sovereigns, and one hundred and forty pieces called half-sovereigns, and five hundred pieces called crowns, it was held that it was not supported by evidence of stealing a sum of money, consisting of some of the coins mentioned in the indictment, without proof of some one or more of the specific coins charged to have been stolen.” (See vol. 1 Greenleaf’s Evidence, in note at bottom of page 86.)
It is true that a subsequent statute was passed in England, upon the subject of embezzlement, to remedy the difficulty of specific proof in such cases, but we have no such amendatory statute.
It is also true that a subsequent amendatory statute of embezzlement was passed, dispensing with the necessity of the allegation and proof of absolute ownership of the property of the principal, and providing that a qualified ownership in such cases should be sufficient, but we have no such amendatory statute; but our- statute is very similar to the first original English statute, under which such great difficulties lay in the way of conviction. But, whatever the difficulties may be of conviction under our statute as it is, the courts are only called, upon to expound and enforce the statute as it is, leaving to the
The application for a rehearing in this case has been examined, and under the suggestions of the plausible and ingenious argument of the counsel for the prisoner, the opinion of the court, together with the law applicable to the case, has been critically revised.
It was not because the court overlooked the bill of exceptions taken to the ruling of the judge in refusing to exclude the evidence of the chief of police—that the notice of the exception was pretermitted in the opinion. But it was because the evidence itself was in the statement of facts, upon the whole and every part of which, this court was necessarily required to form its judgment. The evidence was before the court, and it -was compelled to judge of it in the gross and in detail. The statement of the chief of police, which was objected to, was to explain the reason of his action, founded upon Ms belief and that of others, of the guilty agent in arresting the prisoner. Such belief is always implied in every arrest upon a criminal accusation. The exception was not overlooked. But it was conceived, it was impossible for the jury to base their conclusion of the guilt or innocence of the prisoner upon such statement.
The learned counsel overlooked the provision of the Criminal Code which makes “ embezzlement ” nothing more than a grade of “ theft.” The fifth sub-division of Art. 3096, Paschal’s Digest, says : “ Theft includes all unlawful acquisitions of personal property punishable by the Penal Code.” Then the law of trial, in a case of theft, applies also to a case of embezzlement. The difference between them is only in the facts and circumstances under which they are committed. The punishment is the same in each. Embezzlement is certainly not a common law'offense. But our statute, in making it an offense, consigns it to the evil family of thefts, and subjects it to the same methods of repression and punishment. Another
The rehearing is refused.
Rehearing refused.