Scisson v. State , 121 Tex. Crim. 71 ( 1932 )

We disclaim any intention of holding that when appellant obtained the money on the check which was payable to him that he did not hold such money as collector of the school district, in his official capacity. The sole question before this court is whether the proof supported the allegation that appellant embezzled a check belonging to the district. We think we correctly decided the question in the original opinion.

In the case of People v. Seeley, 117 Mich. Rep., 263,75 N.W. 609, 610, the Supreme Court of Michigan considered a conviction of the treasurer of a township for appropriating to his own use $900 which it was alleged belonged to the township, and had been collected by the treasurer by reason of his official capacity. The accused had sought to prove that while the records showed that he had collected a large amount of taxes, he did not in fact receive money for the taxes, but received saw logs for them, and, upon receipt of the saw logs, receipted the taxes as though they had been paid in cash. He also proposed to show that these logs were put into the river and that the boom which held them in place went out, and the logs were lost. In reaching the conclusion that the testimony in question was improperly rejected, the court said:

"It will be noticed that the offense charged is that the respondent knowingly and unlawfully appropriated to his own use $900 of the money of said township. If he never collected the money, is he guilty of its appropriation? It is urged by the people that, when it is shown by the record that the respondent received money which he failed to pay over, the people have made their case; citing People v. Bringard, 39 Mich. 22, 23 (33 Am. Rep., 344). This would doubtless make a prima facie case, under the statute, but a prima facie case may be rebutted. May not the respondent show that the taxes were never in fact paid to him in money? The township treasurer was not authorized by law to receive anything for taxes except money. The taxpayer is bound to take notice of the law in that respect. The turning out of commodities to the treasurer will not pay the taxes, or discharge the taxpayer from the obligation to pay them. It is not competent for a township treasurer to receive saw logs in payment of taxes, and bind the township by so doing. * * * However culpable the acts of the respondent are, we do not think that by receiving logs for taxes he bound the township, and received money officially, so as to render him, by a failure to turn over the value of the logs to his successor, liable to conviction under the charge contained in the information. We think the court erred in not receiving this testimony. If, on the new trial, it is shown that he received money for the logs, he might be convicted of the offense charged."

In Richards et al. v. Hatfield, 40 Neb., 879, 59 N.W. 777, 780, the Supreme Court of Nebraska wrote as follows: "A third contention for appellant is that taxes can only be paid in money; that a collector of taxes has no authority to receive in payment thereof anything but money; and that, as the evidence in this case shows that Redick paid the taxes to the treasurer by giving him a check on a bank therefor, therefore the evidence does not support the finding of the court that Redick in fact paid the taxes to the treasurer. We agree entirely with the contention of counsel that no tax collector has any authority to receive in payment and discharge thereof anything but lawful money of the United States, and that, if he does accept any kind of property other than lawful money in payment of taxes, such acceptance by him of such property will not operate to discharge or pay such taxes. It is doubtless true that a collector of taxes may refuse to accept a check or draft in payment thereof, and may insist upon being paid in actual money, and until such payment is made the taxes will not be discharged; but in this case King, the county treasurer, accepted in payment of the taxes a check of Redick drawn upon an Omaha bank. If this check had been protested, or never had been paid, of course it would not have operated as a payment of taxes; but the treasurer obtainedthe money on this check from the bank on which it was drawn,and the moment he did so he held such money as treasurer of thecounty, in his officail capacity, and the taxes to pay which itwas given were from that moment paid and discharged."

See, also, Hubbard v. Auditor Gen., 120 Mich. 505,75 N.W. 979; Annotation in 44 Am. Law. Rep. Ann., at page 1234.

The state's motion for rehearing is overruled.

Overruled.