Smith v. State , 34 Tex. Crim. 265 ( 1895 )

The appellant was tried and convicted of the offense of embezzlement, and his punishment assessed at three years' confinement in the penitentiary, and from the judgment and sentence in the case he prosecutes this appeal.

The indictment under which he was tried chanced him with the embezzlement of $865, money alleged to have belonged to the Pacific Express Company, an incorporated company. The appellant filed the motion to quash the indictment in the court below, on the ground that, it failed to allege the charter or act of incorporation, and that it failed to allege that same was incorporated under the laws of any State or foreign power. The court overruled the motion. The appellant excepted, and now asks us to revise the action of the court. In our opinion, there was no error in overruling the appellant's motion.

The appellant also complains, that the court allowed the State to prove, over his objection, by L.S. Garrison, that he was the agent of the Pacific Express Company at Dallas, and in the actual and exclusive care, custody, control, and management of the Dallas office, from which the money in question was taken, and that he did not give his consent for E.G. Smith (appellant) to take the money alleged to have been embezzled. It will be noted that the indictment charged that the money was taken without the consent of the Pacific Express Company. The appellant insists, that a corporation acts through its superior officers, and that the want of consent should have been proven by the president or secretary of the company, or at least by Aiken, who was present as a witness, and who was shown to have general charge of the the company in the State of Texas. In answer to this it is sufficient to say, that this money was received by the company at the Dallas office, which was under the direct supervision of Garrison, who acted for the company; and, moreover, the want of consent on the part of the company was not an issue in the case.

The uncontradicted evidence shows, that the defendant, as agent for the company, received this money from W.W. Aulick, to be transmitted to D.W. McCoy, at Kerrville, Texas. Some seven or eight days thereafter, Aulick, learning that the money had not been received by McCoy, reported to the company. Tracers were sent out for the money, and it was ascertained that the money had not been received at Kerrville, nor could it be ascertained that it had left the Dallas office. Garrison then sent for Smith, the appellant, and asked him "where that money was," and he admitted that he had taken it and used it. He said be had lost it at poker. Garrison told him "that this was bad," and appellant replied, "Yes, he had been rolling it a little too high," and asked Garrison to give him a chance to replace it. This, in our opinion, was tantamount to an admission by appellant that he had used the money without the consent of the express company.

The appellant contends, that the court erred in charging upon circumstantial evidence, because he says the defendant confessed to the taking of the money, and this was positive evidence. It is true that our court has held that where there are confessions in the case, the court need not give a charge on circumstantial evidence. Text writers, however, treat confessions under the head of "Circumstantial Evidence." At any rate, it does not lie with the appellant in this case to complain that the court gave him a charge more liberal than be was entitled to.

The appellant offered in evidence a bond executed on his behalf by a guaranty company to the Pacific Express Company to indemnify it against any losses arising from defalcation or otherwise on the part of the appellant. The court admitted this bond in evidence, and in connection instructed the jury, that they could not look to such bond for the purpose of justifying or excusing the embezzlement, if any had been proven, but that they might look to said bond in mitigation of any punishment they might assess against the defendant in case they found him guilty. What this bond had to do with the case we are at a loss to see. It certainly can not be claimed that it gave the defendant the right to embezzle the money of his principal, nor did the court seem to take this view of it, but only allowed the jury to consider it in mitigation of any punishment they should assess against the defendant in case they found him guilty. This certainly, to our minds, was giving the defendant a more liberal construction of this testimony than the law warranted. The appellant, however, urged that this limitation by the court as to the purpose and effect of this testimony was erroneous; that the bond authorized the defendant to take and appropriate the money of his principal ad libitum, without any fear or apprehension of a criminal prosecution. If such be the law, then every officer who may have executed a bond to the State, county, or municipal governments to indemnify against loss by official misfeasance or malfeasance could appropriate to his own use the money of his principal with impunity, and the agent of every employer, whether corporate or individual, that might require of such agent a bond of indemnity against losses by embezzlement, in consequence of such bond, could steal his company's money and go unwhipped of justice. Such a doctrine would be monstrous. Fleener v. The State (Ark.), 23 S.W. Rep., 1.

Under our view of the case, there was no error in the failure of the court to further present the issue of fraudulent intent than was done in the main charge, and there was no occasion to give the charge on that subject asked for the defendant. The contention of the appellant, that no fraudulent intent in this case was proven, because there was no concealment, but that defendant openly admitted the taking, is not sustained by the facts of this case. The defendant did conceal the taking of the money until he was found out and taxed with it, and then only did he admit its conversion, as we have before shown from the evidence. Nor does it follow, as claimed by appellant, that the want of concealment and a confession as to the taking wipe out the stain of embezzlement. The authorities referred to show, that not only was the taking open and admitted, but also that there was some claim of right to authorize the taking and appropriating of the property. In this case there was none but a secret taking, and on discovery an admission, with an avowal by appellant that he had spent the money which had been received by him, as the agent of the express company, to be safely forwarded to the consignee, in fast living and at the gambling table. In such a case there could be no question of fraudulent intent. The law implies it.

There is no error in the record, and the judgment is affirmed.

Affirmed.

Judges all present and concurring.