Taylor v. State , 29 Tex. Ct. App. 466 ( 1891 )

DAVIDSON, Judge

A motion to quash the indictment, as well as a motion in arrest of judgment, were argued in the court below, which were overruled, and assignments of error bring these same matters before this court.

We quote from the indictment sufficiently to bring these questions in review. Among other things, the said indictment charges that: “O. P. Taylor was then and there the agent and attorney in fact of A. E. Sanders, a private person (who appointed said O. P. Taylor her said agent and attorney in fact under the name of A. E. Livingston), and the .said O. P. Taylor did then and there fraudulently embezzle, misapply, and convert to his own use certain money belonging to the said A. E. .Sanders without the consent of the said A. E. Sanders, viz., $2000, said money being of the value of $2000, which said money had come into "the possession of the said O. P. Taylor by virtue of his said agency and employment as said attorney in fact for said A. E. Sanders.”

The motion to quash this indictment was based upon two grounds, the first being that the money alleged to have been embezzled was not described, and the second that it should have been, but was not, alleged that a description could not be given of said money so embezzled.

Our Code of Criminal Procedure provides that “ when it becomes necessary to describe property of any kind in an indictment, a general ■description of the same by name, kind, quantity, number, and ownership, if known, shall be sufficient.” Code Crim. Proc., art. 427. The word “property,” as used in the above cited article of the Code of Criminal Procedure, includes “money.” Brown v. The State, 23 Texas Ct. App., 214. The word “ money,” where not specially defined by our .statutes, includes metallic coins of all descriptions used as money as well as “that which is legal tender,” as legal tender coins, or legal tender treasury notes of the United States. Lewis v. The State, 28 Texas Ct. App., 140; Sansbury v. The State, 4 Texas Ct. App., 99. “Money,” when not specially defined, must be taken and construed in the sense in which it is usually understood in common language, taking into consideration the context and subject matter relative to which it is employed, but when that term is specially defined it shall be understood in that sense although it be contrary to its usual meaning. Penal Code, :art. 10. The term “money ” has no general definition set out in our codes, either the Penal or the Criminal Procedure. With reference to certain offenses it has been specially defined. Penal Code, arts. 789, 792.

With reference to the offense of embezzlement it has a specially defined meaning, and must be understood in the sense in which the Legislature has defined it, and is as follows, to-wit: “The term 'money,' as used in this chapter, includes besides gold, silver, copper, or other ■coin, bank bills, government notes, or other circulating medium current .■as money; and the term ‘ property' includes any and every article commonly known and designated as personal property, and all writings, of every description that may possess any ascertainable value.” Penal Code, art. 789. These are statutory definitions of the terms “money” and “property,” and they are very comprehensive, and relate to and are defined with special reference to the offense of embezzlement. “Money” is the general term, and includes all the species mentioned. in its definition when embezzlement is the matter under investigation. When the indictment charges the embezzlement of “money ” in its generic sense, and no further description is given of the said “money,” there is necessarily included within that term all of the different kinds, of money set out in article 789 of the Penal Code. Under such allegation the State can prove any character of money.mentioned in said article. The money alleged to have been embezzled was sufficiently described in the indictment, and the court did not err in overruling the' motion to quash.

Appellant’s motion in arrest of judgment was based substantially upon the following grounds, to-wit: The indictment does not make it-appear clearly who was acting “under the name of Livingston”—Mrs. Sanders, the principal, or appellant, the agent and attorney in fact;, that the allegations do not make it certain that A. E. Sanders and A. E. Livingston are one and the same person; that it is not alleged that-the money averred to have been embezzled was in the possession or under the care of the defendant as agent and attorney in fact at the time the-same was embezzled and converted.

The first two grounds may be treated together, and are based upon the-parenthetical clause “who appointed said O. P. Taylor her said agent, and attorney in fact under the name of A. E. Livingston,” contained in the indictment. The pleader was seeking to allege that Mrs. A. E. Sanders gave the appointment to appellant, not under her name as A. E. Sanders, but under the name of A. E. Livingston.

This was not a necessary allegation; it was not an averment descriptive of any of the parties, neither the principal nor agent, nor Of the offense itself, and did not add to nor detract from the relations the parties sustained toward each other as principal on the one side and agent-on the other. It was simply the narration of a fact or incident not descriptive of any person connected with the offense, nor of the offense-itself. It may be eliminated from the indictment without affecting it- or the status of the parties thereto, or their relations to each other. Unnecessary words and allegations do not vitiate an indictment, and may be rejected as surplusage. Recitals which are neither repugnant nor contradictory to the body of the indictment, and which do not render-unintelligible any of the material, traversable matters constituting the charge, may also be rejected as surplusage. Mayo v. The State, 7 Texas Ct. App., 342; Willson’s Crim. Stats., sec. 1968. The parenthetical clause criticised by appellant may be eliminated as surplusage and yet. leave the charge in the indictment complete in stating, by proper averments, the offense sought to be charged.

But if this view be incorrect, still the indictment upon this phase of it is sufficient. It sufficiently alleges that A. B. Sanders, under the name of A. B. Livingston, appointed appellant her agent and attorney in fact. The offense is charged “with sufficient legal-accuracy to prevent the defendant from being prejudiced in his defense, and the offense charged in the indictment is defined by such circumstances as will enable him, should it be necessary, to plead a previous conviction or acquittal of the same offense.” Gay v. State, 2 Texas Ct. App., 127. Tautology, repetition, bad spelling, incorrect grammar and want of rhetorical exactness and finish will not vitiate indictments “unless the words are so inartistically arranged as to make the charge uncertain.” Willson’s Grim. Stats., sec. 1991. The language in this case employed and criticised is not so uncertain and ambiguous as to mislead the appellant, and it sufficiently conveys, the idea that A. B. Sanders, and not the appellant, was meant where the name A. B. Livingston was used.

The remaining ground of the motion in arrest of judgment is that the indictment is fatally defective “because it does not allege that the money charged to have been embezzled by defendant was in his possession or under his care by virtue of his agency and employment as attorney in fact at the time of the conversion and embezzlement.” The contention of appellant is that the indictment must not only allege that the money came into his hands or possession as agent by virtue of such agency, but that it must go further, and allege that it was so in his possession at the very time of the commission of the act which constitutes the offense, to-wit, the conversion of the property. In support of this proposition we are cited to The State v. Johnson, 21 Texas, 775, and Gaddy v. The State, 8 Texas Court of Appeals, 127. In Johnson’s case our Supreme Court, Judge Roberts delivering the opinion of the court, said that “it is the breach of trust that constitutes the gist of the offense. Unless a duty or trust has been imposed there can be no breach of trust.” Johnson was indicted, as clerk, for the embezzlement of money belonging to an Odd Bellows Lodge, but the indictment did not charge that it was his duty as .such clerk to receive the money alleged to have been embezzled. The court further said that “it is not every officer of an institution that is incorporated who can be held liable under this statute by converting unto his own use money of the institution, but only such officers, clerks, or agents as have the money of their principal or employer, which shall have come to their possession, or shall be under their care, by virtue of said office, agency, or clerkship.” The. State v. Johnson, 21 Texas, 775. This trust relationship must exist at the time of the reception of the money by the agent or employe, or the money must be under the care of the agent by virtue of such agency or employment, in order to constitute the offense of em"bezzlement. The other necessary matters must also exist. An agent-who has nothing to do with the fiscal or monetary affairs of his principal, and who receives the money of his principal or may happen to have it otherwise than by virtue of his agency, can not be convicted for the offense of embezzlement under our statute. The reception of the money or property, or the care of it, as the case may be, by the employe, must be by virtue of his employment - or agency for that purpose, and this-must be alleged and proved. This is the extent and purport of the decisions in the Johnson case. In Gaddy’s case this court said that “an indictment for this offense was held bad by our Supreme Court in The State v. Johnson, 21 Texas, 775, because it did not distinctly state that-the defendant had the possession or care of the money by virtue of his-clerkship when he converted it to his own use. Such allegation is required by all the standard precedents.” Gaddy v. The State, 8 Texas Ct. App., 128,129. This we understand to be the correct doctrine, and in strict accord with our statute defining the offense of embezzlement. But it does not follow from this that the indictment should go further and allege that the property or money that may have come into the agent’s possession was in his custody at the time of the conversion. Our statute provides that the agent may be convicted for the embezzlement of such money or property of his principal as “may have come into his possession, or be under his care, by virtue of such office, agency, or employment.” Penal Code, art. 786. The essential element of this-portion of the definition of the offense is that the money or property must have come into the possession of the agent, and not that it shall be in his possession at the time of the conversion. The possession of the principal’s money by the agent, and the subsequent conversion, are the necessary ingredients of this phase of the statute. “In order to sustain a prosecution for embezzlement against an agent of a private person or corporation, four distinct propositions of fact must be established in evidence beyond a reasonable doubt. These are as follows: 1. That the defendant was the agent of the person or corporation as-alleged, and by the terms of his employment was charged with the duty of receiving the money of his principal. 2. That he did so receive money belonging to his principal. 3. That he received it in the course of his employment. 4. That he embezzled, misapplied, or converted it to his own use.” Webb v. The State, 8 Texas Ct. App., 310; Leonard v. The State, 7 Texas Ct. App., 417; Huntsman v. The State, 12 Texas Ct. App., 619; Ex Parte Hadley, 31 Cal., 108.

In the indictment in the case in hand it is alleged that appellant was the agent and attorney in fact of his principal; that the money charged to have been embezzled came into his possession by virtue of his said agency and employment; that he misapplied, converted, and embezzled said money, and that the money belonged to and was the property of his employer. These allegations meet the requirements of the statute in so far as the questions urged by the motion criticise the indictment. It is not necessary to allege that the property was in the actual possession of the agent at the time of its embezzlement. In so far as this phase of embezzlement is concerned, it is sufficiently met by the allegations that the money came into the possession of the agent and was thereafter converted by Mm. Indictments in this State must charge by averments the offense denounced by the statute under which it is framed. More than this is not required; less than this will not suffice. An indictment must charge the particular offense for which the conviction is sought, and with such certainty as will, if it should become necessary to do so, enable the party indicted to plead a conviction or acquittal thereunder in bar of a subsequent prosecution for that offense. When the indictment complies with these enumerated requirements it will be sustained. Thus tested the indictment in this case is a legal and valid one, and sufficiently alleges the offense of embezzlement.

Appellant urges that the facts raised an issue upon which the court should have charged the misdemeanor phase of the law of embezzlement, and that, if embezzlement was proved at all, it was not shown that as much as $20 was converted at any one time. To this we must withhold our assent. We do not think the evidence raised this issue. The facts are too voluminous to be inserted in the opinion. The facts -show that the appellant obtained as agent large sums of money of his employer and converted same to his own use. The case, in so far as the facts are concerned, is in some respects a very remarkable one. The appellant sought to defend himself largely upon the ground that his employer and himself were engaged in a conspiracy to obtain for his employer a false certificate of marriage in St. Louis to be used in the State of Louisiana in a law suit involving a large estate there. He swears to the fact that he assisted Mrs. Sanders in bribing officers in St. Louis, and by means of that bribery obtained the desired marriage certificate. He did this because he expected to be well, paid for it. For this work he testified he charged her $2450, but this is denied by her in so far as the pay is concerned, and she denies the fraud in the matter. Appellant failed to account to Mrs. Sanders for the money that she says was realized upon the two notes, one for $1250 and the other for $1650. Be this as it may, he, from his own showing, obtained a considerable amount of her money for which he fails to give any account so far as the record is concerned. He made false statements of the financial affairs of his principal, thus leaving large sums in his hands unaccounted for. The record shows that he studiously and systematically appropriated the money of his principal, and then gave untrue and false statements to her of the condition of her financial matters in his hands. The court did not err in failing to charge upon the inferior degree of the offense of embezzlement. The facts support the verdict of the jury. We find no reversible error in the record, and no sufficient reason is shown why the judgment should be set aside, and it is therefore affirmed.

Affirmed.

White, P. J., absent.