Burgess v. State , 108 Tex. Crim. 48 ( 1927 )

As one of his grounds for a rehearing, appellant earnestly insists that his bill of exception No. 14 clearly manifests error. Appellant states the question presented by the bill in the following language: "Now the question presented in this bill is: That the state offered those tax reports showing the receipt of the money as an admission on the part of the defendant, which was proper and right, but when defendant replied that those reports you offer were made up from stubs placed on file at the time the tax payer gave me a check for his taxes, and at the time I gave him a receipt, and that instead of being paid, the check was afterwards turned down and I had to take it up as a dishonored check, therefore the report you offer as an admission really does not prove that I received the entire amount of money shown therein."

Appellant's bill discloses that the state introduced in evidence his (appellant's) tax reports as an admission on the part of appellant that he had collected the amount of money shown by said reports. Appellant offered to prove by one of his witnesses that $1,620.00 shown by the reports to have been collected by him had been paid by checks which had afterwards been dishonored, and that he (appellant) had given his checks to take up said dishonored checks. Appellant's witness offered to take the reports introduced in evidence by the state and point out the names of the taxpayers who had paid their taxes by giving checks which had afterwards been dishonored. The witness offered to show by the checks given by appellant to take up the dishonored checks that the tax reports did not establish that he had received the entire amount of money shown therein. The state objected to the testimony on the ground, among other grounds, that the dishonored checks were the best evidence of the fact sought to be proven by appellant. To meet the objection of the state, appellant stated to the trial court that he expected to prove by the witness that he had searched appellant's records and had been unable to find that the money paid by appellant in taking up said dishonored checks had ever been been repaid. The bill shows that when appellant received checks in payment of taxes which were later dishonored, the bank with which he kept his accounts charged him with the checks and that he then executed checks against his account to take up the dishonored checks and that said dishonored checks were returned by the bank to appellant. In qualifying appellant's bill, among other things, the court states that the witness offered by appellant did not qualify as an expert and that appellant did not testify, as shown in the bill, that the dishonored checks had been thrown around his office and lost and that he had made a search for them but had only been able to find a few of said checks. Appellant did not object to the qualifications, and we are bound to consider the bill in the light of the court's qualification. There are no other recitals in the bill showing that the dishonored checks had been lost or destroyed, and no predicate is shown to have been laid for the introduction of secondary evidence. Moreover, it is shown by the bill of exception that appellant according to the report made by him in December, 1924, was due the county $5,931.78 above the amount he actually paid in to the treasurer and that he did not have on hand a sufficient amount of money to pay said sum. The indictment was predicated on the embezzlement by appellant of $5,931.78 of money belonging to Collin County. We are of the opinion that appellant's bill of exception, as qualified, manifests no error.

Appellant takes the position that we were in error in holding that the state made out a prima facie case against him by direct and positive evidence. Briefly, the record discloses that the tax money collected by appellant would be placed in the cash drawer and later removed to the safe when the office was closed; that on various occasions appellant took money from the cash drawer and safe and put it in his pocket without leaving a memorandum of the amount taken; that he took this money from the same place that the tax money had been deposited; that appellant's report for the month of December, 1924, showed that he had collected $26,322.98 due the county ad valorem fund and that he only paid to the county treasurer to the credit of said fund $20,391.20; that in the summer of 1923 a shortage of several thousand dollars in appellant's accounts was discovered by appellant's deputies, and that appellant knew of this shortage; that on a few occasions appellant had his deputy hold up the filing of tax collection reports.

This court has held in theft cases that when the direct evidence showed the taking of the property from the owner, a charge on circumstantial evidence is not necessary because of the fact that the fraudulent intent is sought to be shown by circumstances. See Rundell v. State, 235 S.W. 908, and authorities cited. The same rule applies in embezzlement cases — that is, that the fact that the fraudulent intent is sought to be shown by circumstances does not require a charge on circumstantial evidence when it is shown by direct evidence that the accused appropriated his principal's money to his own use and benefit. The record disclosing that the evidence is direct that appellant appropriated some of the county's money to his own use and benefit, the state's case did not rest wholly on circumstantial evidence. We must, therefore, adhere to our former conclusion that a charge on circumstantial evidence was not necessary.

We cannot add anything to what we said in our original opinion concerning the sufficiency of the indictment, and must adhere to our conclusion that the indictment is not subject to the objection that it is duplicitous. Tankersley v. State,288 S.W. 221.

We are of the opinion that the jury were warranted under the facts in concluding that appellant fraudulently took, misapplied and converted to his own use money belonging to Collin County. It follows that we must overrule appellant's contention that the evidence is insufficient to sustain the verdict of the jury and the judgment rendered thereon.

Appellant insists that bill of exception No. 19 manifests prejudicial error. It is shown by the bill that the Assistant County Attorney in his opening argument made a statement to the jury as follows: "That one day Miss McCollum says he came in and got a handful of money, stuck it in his pocket and walked out, and they became suspicious." Appellant objected to this statement on the ground that it was not supported by the evidence. Whereupon the court instructed the County Attorney to confine his remarks to the record, and the County Attorney stated, "I don't blame him for objecting." Appellant took exception to this remark, and the court stated: "All right, reserve your exception, but the court instructs the jury not to pay any attention to anything except what they remember the evidence to be."

We are unable to agree with appellant that the remarks of the Assistant County Attorney, if improper, were obviously of the nature to impair the rights of appellant or to improperly prejudice his case before the jury. The evidence is sufficient to sustain the conviction, and appellant received the minimum term. In this condition of the record we are constrained to hold that the argument complained of does not constitute reversible error.

Believing that our original disposition of this case was correct, appellant's motion for rehearing is overruled.

Overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.