J. H. Cole v. State , 1884 Tex. Crim. App. LEXIS 137 ( 1884 )

White, Presiding Judge.

Appellant’s conviction was upon an indictment for embezzlement, which originally contained two counts; one for the embezzlement of goods placed in his hands as agent of, and to be sold by him on commission for, Austin & Wilson; and the other for the fraudulent conversion or embezzlement of the money received by him as agent on the sale of said goods. After the evidence was elicited, the district attorney elected to claim a conviction on the count for the embezzlement of the property, and the other count was abandoned.

This prosecution was had in the district court of Bell county. The property, if converted or embezzled, was so embezzled in the county of Williamson. We have a statute specially regulating the venue in cases of embezzlement. .It provides that “the offense of embezzlement may be prosecuted in any county in which the offender may have taken or received the property, or through or into which he may have undertaken to transport it.” (Code Crim. Proc., Art. 219.) It is in proof that the goods alleged to have been embezzled were “received” by appellant in Bell county, and under the statute the venue could properly be laid, as was done, in that county. Had the indictment, or rather the count upon which the defendant was tried, been for the embezzlement of the money or proceeds arising from the sale of the property, then, indeed, the district court of Bell county would have had no jurisdiction, since the goods were sold and the money received and embezzled in the county of Williamson.

Exception was taken by defendant to the charge of the court, but the general charge, togecher with the specially requested instructions of defendant, which were given, submitted fully the law as announced by this court in Leonard v. The State, 7 Texas Court of Appeals, 419. In that-case it was said embezzlement is . “ a fraudulent appropriation of the property of another by a person to whom it has been entrusted. There is no settled mode by which this appropriation must take place, and it may occur in any of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence and not pleading. * * * If he, appellant, sold it with the honest purpose of delivering the proceeds to the owner, and after such sale conceived the fraudulent intention, he would not be guilty of embezzlement. * * * But if the sale was simply a means to effectuate his fraudulent purpose to convert the property to his own use—in other words to steal it— it is as much an act of conversion as-if he had shipped it clandestinely to a foreign port and there disposed of it.”

Having thus submitted the law, it was not error to refuse defendant’s third special requested instruction, because the principle announced in it was embraced in the general charge.

The testimony, sought from the absent witness, Cheney, who was the father-in-law of defendant, is hot probably true when considered in the light of the other evidence elicited at the trial, and we cannot say that the court erred in refusing the new trial in so far as that proposed evidence was concerned.

Defendant’s counsel, on cross-examination, asked the prosecuting witness Wilson, “ Did you or not ever receive an order from defendant on W. G. Cheney to pay your firm claim against him?” On objection by the State that the question was improper and irrelevant, the court sustained the objection, holding that the proper question should be, “ Did you ever receive any order from defendant before the prosecution was commenced.” This ruling was correct.

The other errors complained of are not considered well taken. We find no reversible error in the record. This conviction for embezzlement is in our opinion amply sustained by the evidence, and the trial in all respects appears to have been fair and impartial.

The judgment is affirmed.

Affirmed.

Opinion delivered June 18, 1884,