Evans v. State , 40 Tex. Crim. 54 ( 1898 )

Appellant was convicted of embezzlement, and his punishment assessed at confinement in the penitentiary for a term of two years; hence this appeal.

Appellant made a motion to quash the indictment on the ground that it failed to allege that the property came into the possession of the defendant, or was under his care, by virtue of his office, agency, or employment. These terms of the statute were not used in the indictment, but the allegations contained in the indictment sufficiently stated the relations of the parties, and the court did not err in overruling the motion to quash.

Appellant reserved two bills of exception to the admission of testimony, but we do not think the grounds of objection alleged are tenable. True, it was not necessary for the State to have shown how Miss Nannie Stanley procured the money, but this afforded no reason why said testimony was not admissible. It was competent for the State, if it desired to do so, to show that she had the money she gave appellant to send off, and that the bills were of the same denomination which she testified she gave to him.

It is insisted that the evidence is not sufficient to support the conviction, and it is urgently contended that this case is not unlike the case of Strong v. State, 18 Texas Criminal Appeals, 19. To our minds there is a difference between that case and the one at bar, though they are in some respects similar. In the Strong case the money was received by appellant from Mrs. Caldwell, to be sent to the State Treasurer for the purpose of paying the balance due on a patent for some school land, and procuring the issuance of the same, and appellant in that case claimed to have the Treasurer's receipt for said money. On the trial the Treasurer of the State was not produced, but a clerk was introduced, with the books of the treasury department which it was claimed by the clerk contained the entry of receipts of money sent to be paid on patents for school lands; and he was permitted to state that the books of the Treasurer kept for that purpose did not show the receipt of said money. The court in that case held that this testimony was admissible, but that it was not the best evidence, nor plenary proof, of the fact of embezzlement by appellant Strong; that the money might have been paid to the Treasurer, and he should have been produced in order to show that it was not; that the money might have been received, and not entered in the books. In this case the money was received by the appellant Evans, from Miss Stanley, in a sealed envelope, addressed to J.F. Mahoney, at Gulf Port, Miss. The defendant undertook, on his part to deliver the envelope containing said money at the postoffice in Waco, and to register said letter, taking a proper receipt therefor, and to deliver the receipt on that evening to the sender, Miss Stanley. In this case, Powell, the registry clerk at the time in the postoffice at Waco, was introduced with his book showing the stubs of registered letters sent from that office. He testified that he did not receive a letter for registration from defendant addressed as above stated, and did not register such letter; and he stated that his books did not show the registration of such a letter. Not only so, but J.W. Dodson, who was registry clerk at the time of the trial, was introduced, and he testified that the books showed the registration of no such letter. The difference between Strong's Case and this case is that in Strong's Case the Treasurer of the State, to whom the money was to be forwarded, was not produced. In this case the registry clerk at Waco, whose duty it was to register the letters at that time, was produced. We hold this to be a correct legal principle, applicable to this character of case: That when the State has shown by competent evidence the receipt of money or other property by the carrier, to be carried and disposed of in a particular way, and the State shows that it was not delivered and disposed of in the way and manner as agreed upon, and this is established beyond a reasonable doubt, if the party intrusted with the property has made some other disposition of the property, not criminal, to relieve himself of conversion he must introduce proof of such disposition. Penal Code, art. 52; Bridgers v. State, 8 Texas Crim. App., 145. We would further observe in this connection that if appellant made other disposition of the property, as sending the letter by mail, without registration, to the sendee, as suggested by counsel, this proof was peculiarly within his knowledge. Caldwell v. State, 5 Tex. 18 [5 Tex. 18]; Ashcroft v. State, 32 Tex. 108; Leonard v. State, 7 Texas Crim. App., 417. Indeed, under the facts of this case, if he sent the money to Mahoney, in Mississippi, it was not legally possible for the State to produce said witness at the trial, nor use his deposition. Appellant, however, was authorized to take the deposition of said witness, and prove the fact of the delivery of said letter and money. Appellant, however, appears, from his own statement made to Miss Stanley, to have cut himself off from this defense, because, when confronted by her, he told her that he had the receipt for the registered letter, but did not have it with him. We are not here talking about a prima facie case, but we are discussing the question of defendant's guilt as proved beyond a reasonable doubt, and we hold that the record authorized the jury to find that the State had made a plenary case in this regard. There being no error in the record, the judgment is affirmed.

Affirmed.

[NOTE. — Appellant's motion for rehearing was overruled without a written opinion. — Reporter.]