Powell v. State , 82 Tex. Crim. 163 ( 1917 )

Appellant was convicted of embezzlement and assessed the lowest punishment.

He was indicted by the grand jury of Archer County. By agreement the venue was changed to Clay County, where the trial occurred.

The indictment averred that appellant, in Archer County, Texas, on or about January 27, 1915, was then and there the agent and employe of Florence C. Field, a private person, and that he did then and there fraudulently embezzle, misapply and convert to his own use, without the consent of Mrs. Field, certain money, towit, $373.75, the same being lawful money of the United States of America of the said value of $373.75, and which was the corporeal personal property of and belonging to Mrs. Field, and which said money had theretofore come into the possession of and was then and there under the care of the said Powell by virtue of his said agency and employment.

There are but two questions to be decided: one is whether appellant was Mrs. Field's agent or employe when he received the embezzled money, and the other is whether he received money, lawful money of the United States.

The facts shown were that in February, 1914, and prior thereto, J. D Powell and one W.C. Young were partners in the real estate business and lived and did business in Archer City, in Archer County; and then conducted their business under the name of W.C. Young Land Company. While they were partners Powell was the manager. It seems they dissolved before January, 1915.

Said Mrs. Field lived in Dallas. So did her general agent, Mr. C.B. Gillespie. Since 1912 Mr. Gillespie had entire charge, as her general agent, of all her business and he had authority to employ Mr. Powell or anyone else to collect Mrs. Field's notes, and everything he did in the matter was done with her sanction and approval.

In 1914 Mrs. Field owned some land in Archer County. In the early part of that year Mr. Gillespie, her general agent, employed said firm of W.C. Young Land Company to sell that land for Mrs. Field, which they did, selling it to Helm Rayborn. At the time of the sale and as a part of the purchase money thereof, Helm Rayborn executed to Mrs. Field seven notes for $373.75 each; one each due annually until all matured. They were each dated February 21, 1914, signed by said Helm Rayborn, each payable to the order of Mrs. Field; the first one due on or before February 1, 1915, payable at Archer City, they each retaining a lien on said land and had the usual maturing and securing and attorney's fee clauses. Shortly before the first note became due Mr. Gillespie, for Mrs. Field, sent it, in a letter addressed to said land company at Archer City for collection. At the time Mr. Gillespie knew that Mr. Powell, appellant, was or had been manager of said land company and all of his previous transactions with that firm had been with Mr. Powell himself. At the time he sent this note in said letter he also enclosed therewith a receipt for the interest for one year on all the other of said notes. At the time he sent this note and receipt he did not know that said land company had dissolved but he knew that said Powell had charge of the concern and he was the, only man that he knew in it. In this letter transmitting the note and receipt, Mr. Gillespie stated that he was sending it for collection for Mrs. Field. All the correspondence thereafter carried on between Mr. Gillespie as Mrs. Field's agent and said Powell was carried on in the name of Mr. Powell individually.

As soon as Mr. Powell received said note and receipt for collection he promptly notified Mr. Helm that he had the said note "in favor of Mrs. Field," and asked him if it would be satisfactory to pay it through him as it would be to pay it direct to Mrs. Field, as he would get a commission out of it if paid through him. At the time he enclosed Mr. Helm a statement showing that the year's interest, $197.10. and the principal of the note, $373.75, would make $570.85. Thereupon, on January 27, 1915, Mr. Helm sent Mr. Powell his check on a Wichita Falls bank for the $570.85, payable to powell, dated said date. Powell thereupon sent the note and receipt for the interest to Mr. Helm. On January 30th Powell endorsed his name on the back of that check and deposited it in the bank at Archer City to his own credit, and that bank at that time gave him credit therefor. The bank at Archer City sent the check through its bank correspondent and in the usual course of business the check was paid and returned to Mr. Helm and produced and introduced on this trial. Between the dates of January 30th and February 27th appellant drew out of the Archer City bank all of said money on various small checks — some of them were perhaps later than February 27th.

Although Powell collected said note and interest on January 30th and placed it all to his credit in the Archer City bank he did not remit a cent of it to Mrs. Field or to Mr. Gillespie, her general agent, until February 17th following. On February 15th Mr. Gillespie wrote to Powell, evidently inquiring whether he had collected the note and interest. On February 17th Powell answered that letter and sent Mr. Gillespie a check for $197.10, saying "covering interest on the Field notes and beg to say that the principal will be met in a short while." The principal of the note, $373.75, and no part of it has ever been remitted by Powell; instead he appropriated and embezzled the whole of it himself. Appellant did not testify.

He contends that the evidence showed that in the collection and receipt of said money he was not the agent or employe of Mrs. Field. Mr. Gillespie swore: "I had general authority from Mrs. Field to handle her business. I was collecting this money for Mrs. Field; my whole connection with the matter from start to finish was for her, as her agent, acting under a power of attorney, at Dallas. Mrs. Field is a widow and I handle and have handled all of her business since 1912." He further swore that when he sent this note and receipt in his letter to said land company or J.D. Powell, "I stated that I was sending it for her, Mrs. Field, and all of my correspondence states that . . . I assumed the authority because Mrs. Field did not know Mr. Helm or Mr. Powell, or anybody else, and the land had been sold by them through me . . . and I acted in the same way that I sent the collection there to them. I think that I could have employed anybody else — that I had the authority to employ Mr. Powell or anybody else to do the collecting of this note. I think that would have been permissible under Mrs. Field's authority to me to collect her paper. . . . As to whether the selection of the W.C. Young Land Company or J.D. Powell was wholly a selection of mine to represent me in the collection of this paper (or) for my principal, Mrs. Field, will say everything that I did in the matter was done with her sanction and approval." He further swore that in sending the note and receipt for collection as stated, "I represented Mrs. Field in the matter and, of course, the note was not mine."

In testifying about the sale of her land in Archer County to Helm Rayborn, Mrs. Field swore: "I had nothing whatever to do with that transaction myself; Mr. C.B. Gillespie acted as my agent, had entire charge of it and handled the matter for me." On cross-examination when asked if Mr. Powell collected the money for her or was her agent she swore: "No one ever attended to anything of that kind for me but Mr. C.B. Gillespie — he has entire charge of everything. . . . Mr. Gillespie attends to everything of that kind." On redirect examination she swore: "Yes, sir; I did leave the matter of selecting who should collect or the collection of this note to Mr. Gillespie, and whoever he got in Archer County to collect the note was all right with me; it was all right for Mr. Gillespie to select whom he chose, for he has entire charge of my entire estate."

Mr. Helm swore that just before this first note was due "Mr. J.D. Powell notified me that he had one of these notes of mine that was due, in favor of Mrs. Field, and asked me if it would be satisfactory to me to pay it through him as to pay it direct to Mrs. Field; that he would then get a commission out of it, and of course I told him that it would be satisfactory to me. I paid the note through Powell, and got my note. . . . At that time in addition to paying that note to Mr. Powell, which was $373.75, I also paid to him the interest on the series of notes which amounted to $197.10, making $570.85, principal and interest, that I paid him — to J.D. Powell."

As stated, Mrs. Field and Mr. Gillespie lived in Dallas. Mr. Helm and appellant lived in Archer County. The note was payable to the order of Mrs. Field. She did not endorse it. It was payable in Archer City. Mrs. Field did testify she did not employ Powell, and he was not her agent or employe, but her testimony shows she meant she did not personally employ him, and, therefore, because she did not personally employ him she said he was not her agent or employe.

In Eastland v. Maney, 36 Texas Civ. App. 147[36 Tex. Civ. App. 147], Maney sued Eastland and others for his commissions which he claimed were due him for selling their land in Frio County, as their subagent. The court correctly held: "It is a general rule of the law that in the absence of any authority, express or implied, an agent has no authority to employ a subagent, the trust committed to him being personal, and he can not delegate it to another so as to affect the rights of the principal. There are, however, exceptions and modifications of the rule growing out of necessities and exigencies of a case, or based upon the custom or usage of trade in like cases. There are instances when the employment of subagents is essentially necessary in order to execute the agency, and the authority of the agent will be construed to include the necessary and usual means to properly execute it. Bodine v. Insurance Co., 51 N.Y. 117; Dorchester Bank v. New England Bank, 55 Mass. 177; Bank v. McGilvray, 70 Mass. 518.

"At the time of the employment of appellee it was alleged that Hihn and Alfred T. Eastland were empowered as agents to sell the land. They were residents of California and the land was situated in Texas, and it is a fair presumption growing out of the exigencies of the transaction that it was contemplated that a purchaser should be obtained through a subagent. Smith v. Sublett, 28 Tex. 163; Tynan v. Dullnig, 25 S.W. Rep., 465. It follows as a corollary to the above proposition that if the circumstances of the case justified the appointment of a subagent the principal would be liable for his compensation."

In Wright v. Isaacks, 43 Texas Civ. App. 223[43 Tex. Civ. App. 223], it was shown that Mrs. Jemison, who lived in Alabama, appointed Mr. Meldrum, who lived in Houston, her agent to sell lots for her situated in the town of Cleveland. Mr. Meldrum employed one Peebles, who lived in Cleveland, as a subagent to consummate sales of these lots. The court in that case correctly held: "It may be conceded that Peebles had not full authority as an agent of Mrs. Jemison to sell lots, and that Meldrum being an agent of Mrs. Jemison himself for that purpose, could not delegate such authority to Peebles. Meldrum, however, in his capacity of agent could authorize Peebles to perform such merely ministerial acts with regard to the subject matter of his agency as did not involve the exercise of judgment and discretion, such as pointing out the lots to be sold upon the ground, receiving offers to purchase and transmitting the same to Meldrum, and also advising and informing purchasers as to the proper description of lots by numbers on the map of the town when the same were pointed out by him. The power of Meldrum to delegate to Peebles the performance of such acts may be implied from his own agency, and the acts of Peebles under such delegated authority would be binding upon the principal, Mrs. Jemison. (Mechem on Agency, sec. 193; 1 Am. Eng. Ency. of Law, 978-980; Williams v. Moore, 24 Texas Civ. App. 402[24 Tex. Civ. App. 402]; McKinnon v. Vollmar, 17 Am. St. Rep., 178; Renwick v. Bancroft, 56 Iowa 527.)"

It was expressly held in the case of Smith v. Sublett,28 Tex. 170, that the general rule is that in the appointment of an agent by a principal to do a given thing for him, the authority is personal and can not be delegated to a subagent, "unless from the express language used, or from their presumption growing out of the particular transactions, or of the usage of trade, a broader power was to be conferred upon the agent. (Story, Agency, sec. 14.)"

In Wilson v. Smith, 44 U.S. Sup.Ct. Rep., 763, 11 L.Ed., 820, it was shown that Holcombe of Augusta, Ga., drew a draft in favor of Wilson Co. on Mills of Savannah in said State, which was accepted by him. When it became due Wilson Co. placed it in St. John's hands at Augusta for collection; St. John forwarded it to the defendant Smith for collection at Savannah. Smith collected it and credited it to the account of St. John, to whom he was indebted. St. John became insolvent, failed in business and later died. Thereupon Wilson Co. sued Smith for the money. Smith defended on the ground, among others, that there was no privity of contract between him and Wilson Co. because he was the subagent of their agent to collect the money and as such subagent only he had collected the money. The United States Supreme Court through Chief Justice Taney held: "According to the usual course of dealing among merchants, the transmission of the paper to St. John gave him an implied authority to send it for collection to a subagent at Savannah, for it could not have been expected by the plaintiff that St. John was to go there in person, either to procure the acceptance of the bill, or to receive the money, nor could St. John have so understood it. So far, therefore, as the question of privity is concerned, the case before us is precisely the same with that of the Bank of the Metropolis v. New England Bank (1 How., 234). In that case, the bills upon which the money had been received by the plaintiff in error, were the property of the New England Bank, and had been placed by it in the hands of the Commonwealth Bank for collection, and were transmitted by the last mentioned bank to the Bank of the Metropolis in Washington, where the bills were payable. And upon referring to the case it will be seen that the court entertained no doubt of the right of the New England Bank to maintain the action for money had and received, against the Bank of the Metropolis. . . . We think the rule very clearly established, that whenever, by express agreement between the parties, a subagent is to be employed by the agent to receive money for the principal, or where an authority to do so may fairly be implied from the usual course of trade, or the nature of the transaction, the principal may treat the subagent as his agent, and when he has received the money, may recover it in action for money had and received."

The same doctrine is well established by the decisions of many courts and of the text-book writers. 2 C.J., p. 688. Mechem on Agency (2 ed., 1914), in section 316, says: "It is obvious, too, that notwithstanding the general rule, there are many cases wherein from the very nature of the duty, or the circumstances under which it is to be performed, the employment of subagents is imperatively necessary, and the principal's interests will suffer if they are not so employed. In such cases, although the general rule might otherwise apply, an exception is suggested based upon the presumed assent of the principal, and, therefore, if he has not manifested a contrary intent, the power to employ the necessary subagents will be implied. The authority of the agent is always construed to include the necessary and usual means to execute it properly.

"Thus, if a note be sent to a bank for collection, and for the protection of the principal it becomes necessary to have the note protested, the authority of the bank to employ the proper officer will be implied; and so if a note or draft be sent to a bank or other agent, to be collected at a distant point, the authority of the bank or other agent to employ a subagent at the place of collection, and to forward the note or draft to him there, would be presumed." Again in section 319 he says: "And so, if the employment of a subagent was contemplated by the parties at the time of the creation of the agent's authority, or if it was then expected that subagents might or would be employed, this would be treated as at least implied authority for such employment.

"The fact that the employment of subagents was contemplated by the parties need not be shown by express proof. The nature of the service, the place at which it is to be performed, the distance between the place of appointment and the place of performance and similar circumstances may be taken into account."

Undoubtedly both Mrs. Field and Mr. Gillespie contemplated and intended Mr. Gillespie for her should get some subagent at Archer City to there collect the note and interest for her. The distance and the very collection itself would exclude the idea that Mr. Gillespie was to go there in person to make the collection, and it would clearly show he had the right to employ appellant as her agent to make the collection.

There can be no doubt of the correctness of the propositions of law above, nor of the application of them in this case.

The court specifically, in his charge, told the jury, among other instructions, that one of the essential requisites to constitute the offense of embezzlement was the defendant's agency whereby he was charged with the duty of receiving the property and the receipt of it by virtue of his agency, and required the jury to believe this beyond a reasonable doubt with the other requisites before they could find him guilty. Appellant made no objections to the court's charge, but in addition to the court's charge he gave several special charges, requested by appellant. Among them these: "That unless you find from the evidence beyond a reasonable doubt, that the defendant, J.D. Powell, was the agent or employe of Mrs. Florence C. Fields at the time he received the check from S.G. Helm, then you are instructed that you can not convict the defendant, and your verdict will be not guilty."

"Requisite No. 2 in the court's main charge is as follows: ``The receipt of the property.' By that is meant that the defendant must receive the identical property charged in the indictment, which is lawful money of the United States of America; and you are instructed that the term money as defined by article 1419 of the Penal Code is as follows: ``The term money as used in this chapter includes besides gold, silver, copper or other coin, bank bills, government notes or other circulating medium current as money.' And unless you find from the evidence beyond a reasonable doubt that the defendant by virtue of his agency or employment of Mrs. Florence C. Field, did receive lawful money of the United States of America as hereinbefore defined, and did fraudulently embezzle, misapply or convert said money as hereinbefore defined, then you will acquit the defendant and so say by your verdict." Others of his special charges are quoted below.

Undoubtedly the evidence was sufficient for the jury to believe therefrom that appellant was the agent or employe of Mrs. Field in collecting and receiving the money on said note.

The evidence was sufficient to show that Mr. Gillespie had the express power and authority from Mrs. Field to employ appellant to collect and receive said money for her. But if not the express, then unquestionably, the implied power and authority to so appoint and employ him, and that he was the employe and agent of Mrs. Field in the matter, notwithstanding she, herself, personally did not make the appointment and may not have known at the time that Mr. Gillespie had done so.

The other contention of appellant that as the indictment alleged that the $373.75 in money collected and received by appellant on said note and which he embezzled was "lawful money of the United States of America," that the State had to prove literally that he received the money and that it was lawful money of the United States and that as appellant was not shown to have received physically the money but a check therefore there was a fatal variance between the allegation and the proof.

This identical question has been expressly and correctly held against appellant. In Medders v. State, 54 Tex.Crim. Rep., it was shown Medders and Baxter were indicted for swindling a bank out of a little less than $1000 under certain false representations to the bank. The testimony in that case showed that under certain false representations they borrowed $1000 from a bank, but that the actual money was not paid to them or either of them. Instead, when the note was executed the bank, under their agreement, merely passed that amount to the credit of Baxter on its books, and that he afterwards checked out the money by checks to various persons. The indictment therein alleged that the money so obtained was current money of the United States of America, just as alleged in this case. Therein this court, through Presiding Judge Davidson, held: "Appellant contends that neither he nor Baxter received any money of any sort, and that while the money was placed to the credit of Baxter, it created only the relation of creditor and debtor as between Baxter and the bank, and, therefore, no money was in fact obtaind. We have held in prior cases this proposition is not sound, therefore we deem it unnecessary to review that question. . . .

"Appellant depended largely upon the theory that as the indictment charged him with obtaining current money of the United States that the case was not made out; in fact, that there was a variance between the allegation in the indictment and the evidence introduced because of the fact that no money really passed between the parties, and the passing to Baxter's credit the one thousand dollars, less the one month's interest, was not sufficient to show a reception of money. As stated, we do not think there is any merit in this contention. It was as much a money transaction by passing the money to the credit of Baxter as if he in fact had received the money and placed it back in the bank, or had received the money and carried it away. It changed the possession and title to the money from the bank to Baxter. The court, therefore, did not err in refusing appellant's requested instruction covering this contention."

The Medders case was a companion case to Baxter v. State,51 Tex. Crim. 576. Substantially the same point was made in the Baxter case and expressly held against him.

In Pope v. State, 75 Tex.Crim. Rep., it was shown that Pope was bookkeeper and cashier of the Nobles Grocery Company with authority to draw checks and sign said company's name thereto in payment of debts due by the company; that he drew a check on one bank, in Amarillo for $312.60, signing said company's name, by him. He took this check to the First State Bank where there was a draft due by said company for $107.42, which he paid, not in money but by the check for $312.60. Then he had St. Louis exchange issued for the remainder, $205.18, payable to his brother-in-law. He then endorsed his brother-in-law's name on the back of that exchange and his own name and therewith paid a debt due by him to Crossett. Pope therein contended that the evidence was insufficient to show that he embezzled the money, $205.18, but that if it showed anything it showed that he embezzled the St. Louis exchange for that amount. As a matter of fact in that case not a dollar of actual money was handled in any way by appellant or anybody in connection with the transaction. This court held that "the court (below) correctly held that it was money he embezzled and not a draft or exchange." That various steps taken by him were but steps in the one scheme to appropriate his employer's money, which he, by the confidence placed in him had under his control to the extent he used the money in the bank in the purchase of the exchange payable to his brother-in-law.

In Nesbitt v. State, 65 Tex.Crim. Rep., it was shown that Smith had money on deposit in the Gatesville National Bank. Nesbitt was a stockholder in the Farmers National Bank at Gatesville and he induced Smith to change banks and to give him, Nesbitt, a check on the Gatesville National Bank, which he would take the next day and deposit in Smith's name to his (Smith's) credit in the Farmers National Bank. Smith gave the check to Nesbitt for that purpose. Instead of Nesbitt depositing the check to the credit of Smith he deposited it in the Farmers National Bank to his own credit, and then gave a check therefor in payment pro tanto of his own note. The indictment therein had two counts: one charging embezzlement of said check, and the other, of the money represented thereby. The testimony showed that not a dollar of money was handled physically by appellant or anyone else. Appellant therein contended that as the indictment alleged in fact that he embezzled $60 in current money of the United States and that as the testimony showed he received no money he could not be convicted under the second count. This court held directly against Nesbitt's contention to the effect that he could be convicted therein for the embezzlement of the $60 in money although he and no other in connection therewith handled a dollar in actual money. In effect, that the transactions of depositing the check to his own credit and drawing his check in payment on his own note was an embezzlement of the money itself. See also Leach v. State, 46 Tex.Crim. Rep.; Taylor v. State, 29 Texas Crim. App., 500. These authorities are in point and directly hold against appellant's contention.

As stated, appellant made no objections to the court's charge. Among the other requisites the court, in his main charge told the jury that it was essential that the appellant received the property (money) before they could convict him. In addition, he gave these two special charges at appellant's request, towit:

"Before you can convict the defendant in this case, you must find and believe from the evidence beyond a reasonable doubt that the State has proved the offense as charged in the indictment, towit: that the defendant, J.D. Powell, was the agent and employe of Mrs. Florence C. Field at the time he collected the note in question, and at the time he checked money out of the bank, he so collected, if you find he did check said money out of the bank and he did so at said time with the fraudulent intent to embezzle, misapply or convert said money and that said money had come into his possession by virtue of his employment or agency and that said money was lawful money of the United States of America; and unless you so find you will acquit the defendant." And

"Before you can convict the defendant you must find from the evidence beyond a reasonable doubt that at the time the defendant checked out the money in question, if you find he did check out said money, that he had the fraudulent intent to then embezzle, misapply or convert said money so checked out, if he checked out said money, and unless you find such fraudulent intent at said time, you will acquit the defendant."

What was said by Presiding Judge Davidson in the Medders case, above quoted, is peculiarly and especially applicable in this case. The evidence unquestionably shows that under the authorities he embezzled $373.75 of Mrs. Field in money — lawful money of the United States — and he was justly and legally convicted.

The judgment is affirmed.

Affirmed.

ON REHEARING. November 14, 1917.