Brown v. State , 99 Tex. Crim. 441 ( 1925 )

The proposition is ably discussed in the motion that though the facts may show a case of theft by false pretext, yet if it appears that at the time appellant came into possession of the money he then intended to fraudulently appropriate it, — he may not be guilty of embezzlement but may be convicted of theft by false pretext; and it is insisted that the testimony shows such to be the case.

The question is of some interest, but seems to have been decided against appellant's contention even if his conclusion as to the facts be correct. In Leonard v. State, 7 Texas Crim. App. 444, appears this broad statement: "What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted." Golden v. State, 22 Texas Crim. App. 14, seems decisive against appellant. We quote:

"But, again, it is most urgently insisted that the evidence does not warrant a conviction for embezzlement; that if any offense is established against defendant, it is theft and not embezzlement. We are free to concede that the defendant might have been convicted, under the evidence developed of theft, by having obtained the money under false pretenses — the pretense being that he wanted to deposit it in bank to secure it for the owner — his intention at the time being to deprive the owner of it and appropriate it to his own use. But the fact that he might have been convicted of theft does not militate against the fact that he might, under the same circumstances, be guilty of the crime of embezzlement. 'All authorities treat embezzlement as akin to larceny, and the statutory offense of embezzlement mainly originates in a necessity which resulted from the inapplicability of the common law of larceny to breaches of trust by persons occupying fiduciary relations. Concisely defined, it is the fraudulent appropriation of another's personal property by one to whom it has been intrusted. The fraudulent conversion may be consummated in any manner capable of effecting it, and its commission is a question of fact and not of pleading when the indictment charges that defendant did embezzle, fraudulently misapply and convert to his own use the property entrusted to him.' (Leonard v. The State, 7 Texas Ct. App. 418[7 Tex. Crim. 418]; Cole v. The State, 16 Texas Ct. App. 461[16 Tex. Crim. 461].)

Defendant induced Mrs. Weedon to turn over the money to him, ostensibly and with the understanding that he was to deposit the same for her in bank for safe keeping. She intrusted it to him for that and no other purpose. At the very time he obtained it, it is true that to all intents and purposes he was a thief, intending to steal it; but in so far as she was concerned, she was only creating him her agent to take the money for deposit for her to the bank. The trust imposed in him by her was that he would, as her agent, take the money to the bank, and it was intrusted to him solely for that purpose. Instead of complying with the purposes of the trust and his agency, he misapplied, misappropriated, embezzled and converted to his own use the money so confided to him. The evidence makes a most clear and indubitable case of embezzlement, even though it may contain all the essential elements of theft also. It amply sustains the conviction for embezzlement, and we feel fully justified in adding that the facts developed in this record discover as heartless and as inhuman a wrong to obtain money by fraudulent devices as is rarely to be found in the history of crimes unaccompanied by personal violence."

See also Landrum v. State, 166 S.W. Rep. 726. In the Golden case, supra, as in the instant case, there was one count charging theft by bailee and another charging embezzlement, and the contention was made, after conviction under the embezzlement count, that it was a case of theft by bailee and that the conviction could not stand. It would appear sound that the fraudulent intent in the mind of the person accused at the time the fiduciary relation was created, could not be used by him to combat and overturn the fact of such relationship and his receipt of the property from its owner by virtue thereof.

Is appellant correct in his assumption that the facts negative the existence of any agency relationship? Smith, the alleged owner of the money, testified that appellant told him he had arrested other persons and had "turned the money in under an assumed name, and I didn't want any publicity, and he said he would avoid all of that." Smith testified that after arresting him and talking to him about it, appellant figured the amount of the fine and he gave it to appellant, and said witness further testified "He said he would turn the money in under an assumed name and there would never be nothing to it; that he would turn the money in under an assumed name to avoid publicity." Again Smith said: "I did not give my consent to this defendant to convert that money to his own use. I told him to turn it in. He told me that it would be turned in to the registry of the court under an assumed name." That this made appellant the agent of Smith for the purpose of paying the money so turned over to appellant to the authorities, seems clear. Smith v. State, 53 Tex.Crim. Rep.; Adams v. State, 172 S.W. Rep. 219.

Regretting our inability to agree with the propositions advanced, the motion for rehearing will be overruled.

Overruled.