Hamer v. State , 60 Tex. Crim. 341 ( 1910 )

This is an appeal from a conviction for embezzlement with a penalty of four years confinement in the penitentiary.

1. Appellant seeks a reversal, first, upon the ground that the bill of indictment is insufficient in that it omits to state the value of the money embezzled; second, that the facts disclosed the relation of debtor and creditor between appellant and the prosecuting witness, and that the court erred in not charging the jury that if the money was loaned to the defendant by the prosecutrix, and the relation of debtor and creditor existed, he could not be guilty of embezzlement, and, third, that the defendant should be acquitted because the proof disclosed that on the date alleged in the bill of indictment, when the embezzlement occurred, the defendant embezzled less than $50 in value, and, therefore, the court should have directed the jury if they found the property to be of a value less than $50 that defendant would only be guilty of a misdemeanor, or to state it in another way, that if money is placed in the hands of an agent to be handled for his principal and that he used that money at different times, that each appropriation would constitute a separate offense, and for that reason if at any time he appropriated an amount less than $50 that defendant could not be convicted of a felony. The indictment in this case alleged that appellant being the agent, clerk, attorney at law and attorney in fact for Emily Lewis, that there had come into his possession as such agent and attorney the sum of $2,050 "in the legal money of the United States of America," and that defendant did on or about the 13th day of December, 1902, unlawfully and fraudulently embezzle, misapply and convert said money to his own use without the consent of the said Emily Lewis, and which had come into his possession and control by virtue of his said agency, clerkship and attorneyship.

Now, it is contended that because the pleader omitted to state that the $2,050 in legal money of the United States of America had any value, that, therefore, the bill of indictment is defective. We are of opinion that an indictment alleging embezzlement of so many dollars in legal money of the United States of America is a sufficient allegation of value; that the amount designated expresses the value and is a sufficient allegation of value. See Warren v. State, 29 Tex. 370; Kelley v. State, 34 Tex.Crim. Rep.; 15 Cyc., 516; Gibson v. State, 100 S.W. Rep., 776. In 15 Cyc., 516, it is stated: "An indictment or information for embezzlement must, as a general rule, state the value of the money or other property alleged to have been embezzled, although this may be done approximately or in the aggregate. Where, however, the punishment prescribed by the statute is fixed irrespective of the value of the property converted, its value need not be alleged, and in some cases a distinction is drawn between legal tender and other property. And it has been held that an allegation of value is indispensable if property or bank bills not a legal tender has been embezzled, but that where the allegation is of the embezzlement of so many dollars in money, the amount designated expresses the value, the presumption being that it was lawful money." The pleader, however, goes further in this case and alleges that it was legal tender money of the United States of America. We, therefore, hold that the bill of indictment is a valid bill.

2. On the trial of the case Miss Emily Lewis testified that she had known appellant for a number of years, and that she had had him to act as her agent in collecting her rents, paying her taxes for her, and looking after her business generally, and that she had put money in his hands to loan for her. She testified that on October 15 she sold a piece of property for $2,000, and that this money was turned over to appellant to invest for her, and that on December 5 she let him have $60 to be loaned for her. She further testified that she made no inquiry of the defendant for something nearly a year after she had given him this money to invest as to how he had invested the money; that she had implicit confidence in him, and trusted him, and took his word as to the loaning of her money; that the defendant paid her some interest during the year 1903, claiming that this was the interest on the $2,050 that he had loaned to a man named John Ward. The defendant in a statement that he made to Miss Lewis of the moneys and what disposition he had made of her funds reported that he had loaned $2,050 of her money to John Ward, securing a mortgage on a piece of property that was worth more than double the value of the loan. The State placed in evidence the receipt for the $60 above mentioned. Finally, Miss Lewis became restless and placed her matters in the hands of Mr. Doom, an attorney of the Austin bar, who has since died. That inquiries were made with reference to the John Ward $2,050 note. This note was found to be bogus, and no such man as John Ward could be found, and appellant practically admitted that the John Ward note was a forgery. The John Ward note was executed on December 13, 1902, the day the bill of indictment alleged the embezzlement occurred. It is contended by appellant that the receipt that was executed by the defendant for the $60 shows upon its face that it was money loaned Hamer by Miss Lewis. The receipt reads as follows:

"December 5, 1902.

"Received of Miss Emily Lewis Sixty Dollars on loan account.

"J.P. Hamer."

Miss Lewis was permitted to testify as to the meaning of the words "loan account" in said receipt, and that it meant that the money was placed in his hands to be loaned out by him as her agent. It is further contended that this shows that the relation of debtor and creditor existed between Miss Lewis and appellant first, and second, that being a written instrument and not ambiguous, that the court below erred in allowing the State to prove what "loan account" meant. We are of opinion that the receipt did not show the relation of debtor and creditor, and it was permissible for the witness to explain what "loan account" meant. A question not dissimilar to this was before our court in the case of Stephens v. State, 49 Tex.Crim. Rep.. The receipt in that case reads as follows: "Received of Chas. Monroe the sum of two hundred and ten dollars subject to his order on demand." And there the State attempted to prove what was the meaning of the words "subject to his order on demand," and this court, speaking through Judge Henderson, says: "With reference to the construction of said instrument we would observe that if it is a mere receipt and not contractual, it is subject to explanation and contradiction by parol testimony. Or if there is ambiguity about said instrument as to whether the same is a receipt or contractual, it is subject to parol testimony, explaining or contradicting it. See 1 Elliott on Evidence, p. 617." And the court further stated: "However, in the hands of a private person, does the clause which follows a receipt in general terms `subject to his order on demand' constitute it such an instrument as makes the fund in his hands subject to his use as a loan and so not the subject of embezzlement? Or is it of that character which is subject to explanation by parol evidence? As stated above, we think it is of the last named character." So, in this case, we think, it could be shown by the State that the delivery of said money to appellant was for a specific purpose inconsistent with the loan or authority on the part of appellant to use and appropriate the same to his own use, and on the other hand it was permissible for appellant to show that the purpose of the execution of said receipt was to authorize him to use said money and to return it when demanded. The proof by Miss Lewis was that the money was deposited with appellant for the purpose of loaning it out for her. There is no testimony in the record that would suggest that the money was placed with defendant for a different purpose other than what Miss Lewis stated. We have carefully read over the testimony in the case, and we are of opinion that there is nothing in the record that would suggest that the relation of debtor and creditor existed between Miss Lewis and the defendant.

3. On the trial of the case appellant offered his account with the bank where he kept Miss Lewis' money deposited. The account simply stated "J.P. Hamer, trustee." He offered this account in evidence and it shows that on the 13th day of December, the date alleged in the bill of indictment as to when the appropriation occurred, that he drew out of the bank $17.25 in one check, and $25 in the other. The contention is made that the bill of indictment alleging the offense to have occurred on that date, and the account only showing that he drew out of the bank $42, that this was a separate and distinct offense, and being a misdemeanor, the court should have directed the jury that they would find defendant guilty of petit theft, and that the State was not permitted to show any other date than the 13th, because each withdrawal was a separate and distinct appropriation. We can not give our sanction to this theory. The money having been deposited by defendant in the bank, he had authority to withdraw the money, and the mere act of withdrawal could not of itself be construed into an appropriation. Suppose that defendant deposited $2,000 in the bank on the 15th of October. Suppose on the next day he declares an appropriation in his mind, then because he may have drawn it out by dribbles, could it be said that each withdrawal was a separate offense? Or suppose that he had the $2,000 in his pocket, and determined to appropriate it, and he walked out of his office and went upon the street, and spent five or ten dollars today, fifteen tomorrow, and twenty-five the next day, would each be a single appropriation? We think the position is wholly untenable. The offense of embezzlement is constituted by the fraudulent misapplication or conversion to his own use without the consent of his principal or employer any money or property of such principal or employer which may have come into his possession or be under his care by virtue of his office, agency or employment. See article 938, Penal Code. A question similar to this came before this court in the case of Taylor v. State, 29 Texas Crim. App., 466, and the proposition contended for by appellant here was held adversely to his contention in that case. Judge Davidson, speaking for the court, says: "Appellant urges that the facts raised the 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 twenty dollars was converted at any one time. To this we must withhold our assent. We do not think the evidence raises this issue. The facts show that the appellant obtained as agent large sums of money of his employer and converted same to his own use." So, in this case the proof discloses that appellant received $2,050. This money came into his hands on the 15th of November, 1902. One month thereafter, or on the 17th day of December, 1902, he forged a note to cover $2,050 and attempted to make Miss Lewis believe that this note was genuine and that he had loaned her money on it. This itself may be evidence of the act of conversion, and this was the day that the offense was alleged to have been committed. But let us look at it differently. Defendant's account at the bank shows that on October 15, the very day that this money was placed in the bank, he drew out $540; on the 16th, $100; on 18th, $136; on 23d, $65; on 29th, $50; on November 6, $61; on 7th, $73. If it may be charged that each withdrawal of the money from the bank was a separate offense, still the fact that the defendant showed on the day alleged in the indictment he did not commit a felony, the State would be permitted to go behind that date and show that he had committed a felony at some time within the period of limitation, and the State was not limited to the day alleged in the indictment. But it is contended by appellant if the offense committed on the day alleged in the bill of indictment was a separate and distinct offense, and the State, having so proved this matter, was precluded from inquiring into other offenses, and he gives as an illustration that if a party steals several horses from different persons at different times, that you could not offer the proof of the theft of a horse from B when you had alleged the theft of a horse from A on the date fixed in the indictment. We do not think counsel is happy in his illustration. Each is a separate and distinct offense. Here it is not the withdrawal of the money in dribbles that makes the offense. It is the appropriation of the money, and whenever the defendant appropriated it his offense was complete, and the State's case can not be successfully met by proof that after he had appropriated the money he scattered it out in small amounts and then claimed that these small amounts would constitute separate offenses.

4. Counsel further contend that the court erred in allowing proof by secondary evidence of the note executed by John Ward for $2,050, dated December 13, 1902. He reserved a bill of exception to the introduction of this testimony on the ground that it was secondary and offered as a copy of a copy. The proof disclosed by Miss Lewis and by her counsel, Mr. Holliday, who was a witness in the case, that the note had been lost, and that diligent search had been made for the same and it could not be found. Holliday testified that he had the note when he drew the affidavit against the defendant in the Justice Court, and that he set out the note in said affidavit, and that the note as set out in the affidavit was correct, and was an exact copy of the original. Mr. Warren Moore, who was district attorney, testified that when he drafted the bill of indictment in the case against the defendant, that he set the note out in the exact language as contained in the affidavit. There is no such thing as degrees in secondary evidence. However, if the court should have been in error in this respect, the error was harmless, because in the statement that the defendant made to Miss Lewis, he stated that he had loaned this money out on a note. He turned the note over to Miss Lewis. Her brother-in-law, Mr. Beck, went to see appellant about it, and carried the note, and asked him about the note, and he admitted to him that it was a forgery, and that no such man existed. We, therefore, hold that the court did not err in admitting the testimony, and the same, if error, would be harmless.

We have examined the record with great care, and are constrained to hold that the proof shows the guilt of the defendant conclusively; that there are no errors of law committed by the trial court. He has had a fair trial, and the judgment will be affirmed.

Affirmed.

ON REHEARING. November 23, 1910.