Miller v. State , 88 Tex. Crim. 69 ( 1920 )

The State has filed its motion for rehearing. We might have stated in our opinion on original presentation that the indictment herein contains seven counts, and that appellant's motion to require the State to elect upon which count it would proceed having been sustained, the prosecution proceeded upon only the seventh count; also that in said court, appellant was charged as the "clerk or employee of an incorporated company, etc." This would have made clearer our statements and reasoning in said opinion.

The word "employee" not appearing in the statutory expression of who may commit embezzlement from a corporation, it would at once be evident that the legal terms used in describing appellant's attitude and relationship in the indictment, being thus narrowed down to the allegation that he was a clerk, we would be held to the necessity of finding facts in testimony which showed him to be a clerk, else we would be forced to the conclusion of a variance between the indictment and the proof. The motion for rehearing insists that while appellant was known and designated by those who employed him, and who were associated with him in business, as a cashier, that he was, notwithstanding, a clerk, and that the question for decision is not, what a man is called, but what he is. Appellant cites the Standard Dictionary, page 352, wherein, among other definitions of a clerk, appears the following: "A person who is employed to keep accounts, or do writing; a hired assistant in an office, counting-house, library or the like: colloquially in the United States made to include salesmen or shop assistants." However, the motion also cites page 292 of the same work, wherein cashier is defined as "One who is a custodian of money, especially one who has charge of receipts, disbursements, cash on hand, and ordinary financial transactions of a bank or mercantile house or the like." The Century Dictionary defines a clerk as "(1) A clergyman or ecclesiastic, (2) A person who could read; a scholar; (3) A parish officer; (4) One employed to keep accounts or records; a scribe, an accountant; as the clerk of the crown; a town clerk; (5) An assistant in a shop or store." The same work defines a cashier as "one who has charge of money; a cash keeper; the officer who has charge of the payments and receipts of money of a bank or mercantile company."

It would seem from what we have thus said that there is a clear distinction between a cashier and a clerk, in the view of the lexicographers. Neither term is given as synonymous of the other, nor are the definitions such as that we might hold them equivalent terms. Bearing in mind then that in the record before us, appellant is always spoken of as a "cashier," and nowhere as a "clerk," and that the men charged with the duty of employment in the establishment where he worked, stated that he had never worked for them as a clerk, and having seen that the two positions are of different definitions, and duties, as stated by the dictionaries, we turn to the legal authorities cited in the motion. Volume 20, Corpus Juris, page 440, is cited as upholding the proposition that "clerk" and "cashier" are interchangeable terms. The case of Yeiter v. State, 54 Kansas, 277 is quoted as sustaining the text. Examining the Yeiter case, it appears that he was prosecuted as the agent of the Bank of Ingalls, a firm composed of two men, and it was stated in the information that one Yeiter was employed by said firm as agent, and was designated as "cashier, etc." The Kansas court held that Yeiter could not be convicted under that clause of the statute seemingly referred to in the pleadings, but quoted a statute forbidding embezzlement from a private person, under which it was held that if prosecuted he might be convicted; and, after quoting said statute, said court observed that the terms "clerk" and "servant" as used in said statute, included a cashier. The statement was purely obiterdictum, but same refers to two Ohio decisions as its authority — Gravatt v. State, 25 Ohio, 162, and State v. Kusnick, 45 Ohio. Neither of these decisions in any way sustains the statement in the opinion of the Kansas Court referred to. In the Gravatt case, it appeared that he was a sewing-machine agent, selling machines and collecting for them upon a stipulated salary. The question was raised and decided affirmatively that he was a servant within the terms of the Ohio embezzlement statute. The term "cashier" was not mentioned in the record.

Kusnick was a partner in a private bank, in the other case mentioned, and the trial court instructed an acquittal upon the theory of partnership. The State excepted, and upon appeal the exception was sustained, but there is nothing in the case indicating that a clerk or cashier are interchangeable terms.

Citation is also made in the motion to other cases holding that where one is regularly employed in one capacity, but occasionally serves in another, he may be guilty of an embezzlement committed in the temporary employment. We find none of the citations applicable.

Article 10 of our Penal Code states that unless otherwise specially defined, all words used in said Code are to be taken and construed in the sense in which they are understood in common language. The object of this is manifestly in order that persons charged with crime might know in well understood terms what they were charged with. Without offense, we might assume that those associated with appellant in the instant case, spoke our common language. Of the number of witnesses introduced by the State, not one of them understood appellant to be a clerk, or called him a clerk, but all of them spoke of him as a "cashier," and when asked the express question, the manager of the business said that he was not a clerk. The forbiddance of this statute is against any officer, agent, clerk, or attorney, and we see no reason why the language of the indictment might not follow that of the statute. That one is not a clerk is not equivalent to saying that he is not an agent or an officer. We might further observe that the books are full of cases in which there is no particular attempt to name the exact capacity in which the accused was employed, wherein indictments have been sustained because the facts state therein showed such relationship within the comprehension of the statute.

Objecting to our holding in regard to the letters found in appellant's possession when arrested, the motion urges the admissibility of said letters, under authority of Thompson v. State, 35 Tex.Crim. Rep.. In the Thompson case, the effort of the State was to show that Thompson and one Whatley committed a joint robbery. Whatley was killed after the indictment was returned against him and Thompson, and a letter was found on his body, of unmistakable bearing on the case. The ruling by this Court that said letter was properly admitted, is the one referred to. We think the Court in that case correctly admitted said letter, but are unable to find any support in such holding for a contention that the letters in question were admissible. We have again examined said letters, in view of the insistence of the State, but are unable to find anything in them referring even remotely to facts pertinent to this case.

It is contended further that we erred in holding this a case of circumstantial evidence. The State cites a line of authorities in homicide cases, holding that when the fact of the killing is proven by positive testimony, that because the State had to resort to circumstances to prove the intent of the accused, would not make it a case of circumstantial evidence. We are unable to see the relevancy of these citations. The factum probandum in embezzlement cases is the fraudulent conversion and appropriation of the property in question, and though it be established by positive testimony that said property came into the possession of the accused, this would not relieve the case of being one of circumstantial testimony, when the entire question as to whether or not said property was so converted as to make it embezzlement, was one of deduction from the circumstances in evidence.

The motion will be overruled.

Overruled.