Martin v. State ( 1923 )

The descriptive averment of the indictment reads thus:

". . . that . . . F.B. Martin, did then and there unlawfully and fraudulently take one promissory note for the principal sum of Five Hundred Dollars, executed by B.E. Martin, and L.L. Mackey on the 7th day of February, 1920, and payable to W.O. Martin seven months after date, of the value of Five Hundred Dollars; one promissory note for the principal sum of Five Hundred Dollars, executed by B.E. Martin and L.L. Mackey, on the 7th day of February, 1920, and payable to the order of W.O. Martin, nine months after date, of the value of Five Hundred Dollars."

There is no such lack of certainty in the descriptive averments in the indictment as condemns it. It is obvious that it charges the theft of two notes of even date, of equal amounts, with the same maker and the same payee. If as to one of the notes the indictment was incomplete, that averment might be treated as surplusage. Hickman v. State, 22 Texas Crim. App. 441; Hammons v. State, 29 Texas Crim. App. 448; Branch's Ann. Tex. P.C., Sec. 506. There is but one offense embraced in the indictment. One that is duplicitous charges in the same count more than one offense. Rumage v. State, 55 S.W. Rep. 64; Branch's Ann. Tex. P.C., Sec. 506. It is the State's theory and testimony that each of the notes was deposited by the owner with a certain bank for safe keeping and were fraudulently obtained by appellant upon a forged order. It was undisputed that he collected the amount of the notes, and he claims to have given the money obtained on them to one Jackstone, in person, at Longview, Texas, as a deposit for the benefit of W.O. Martin and that the W.O. Martin received it. It was therefore competent for W.O. Martin to testify that he had never received any of the proceeds of the notes.

It was shown without controversy that appellant presented to the bank with whom the notes were placed a written order purporting to bear the signature of the owner, W.O. Martin denied the execution of the order and disclaimed having given any authority to the appellant to secure the possession of the notes. There was evidence introduced by the appellant, in addition to his own testimony supporting his theory, that in obtaining the notes he acted on authority from the owner and that the written order was genuine. These issues were pertinently placed before the jury in a written charge to which there was no objection urged and in which we have observed no fault. Apparently it accurately and fairly presented appelant's defensive theory and clearly informed the jury that even though appellant acquired the notes by a fraudulent device, there could be no conviction unless at the very time he received them he formed the intent to appropriate them to his own use and deprive the owner of their value.

The record shows no motion for a continuance, but appellant claims in his motion for rehearing that he expected Jackstone, who resided in McAllister, Oklahoma, to be present at the trial and give testimony supporting appellant's defensive theory. No statement from Jackstone was presented in the trial court, but several months after the record was filed in this court, there was placed among the papers on file an affidavit signed Y.D. Jackstone, which reads thus:

"The State of New Mexico, County of Union.

Before me, the undersigned authority, on this day personally appeared Y.D. Jackstone, who, after being by me duly sworn upon oath, says that he knows F.B. Martin of Longview, Texas, and has so known him for several years, and that he knows W.O. Martin of Texarkana, Ark., having had business transaction with the said W.O. Martin on one occasion in McAllister, Okla. In this, F.B. Martin, during the month of November, 1920, delivered to me, in Longview, Texas, several hundred dollars and in this amount he delivered to me One Thousand and Sixty-nine Dollars belonging to W.O. Martin, all the money the said F.B. Martin delivered to me was deposited with me in the name of F.B. Martin, trustee, for safe keeping, he furnishing me with a list of the owners and the amount due each one. Some time after this time, latter part of January, 1921, F.B. Martin had the amount of W.O. Martin deposited with me in the name of W.O. Martin, and I sent W.O. Martin a receipt showing this deposit to his account to him at Texarkana, Ark., R.F.D., also sent to F.B. Martin a copy. About ten days after this, W.O. Martin, drew his entire deposit, $1069.00 in person at McAllister, Okla., from me, and gave me receipt for same which I have. He seemed happy over collection of this money for him by F.B. Martin and spoke in high terms of F.B. Martin.

Y.D. Jacstone.

Sworn and subscribed to before me this the 14th day of Sept. 1923.

F.S. Canfield, Notary Public, Union County, New Mexico.

(Seal)

My commission expires

May 23, 1927."

There exists in this court no authority to consider this affidavit for any purpose. McBride v. State, 93 Tex. Crim. 257, 246 S.W. Rep., 394. It has been embraced in the opinion in order to give the appellant such benefit from it, if any, as might result from such use of it.

The motion for rehearing is overruled.

Overruled.