Butler v. State , 54 Tex. Crim. 42 ( 1908 )

Appellant was convicted of embezzlement and his punishment assessed at a fine of $5 and one day in the county jail. There is but one question in the record that we deem necessary to review, and that is the sufficiency of the evidence to support the verdict. The information charges that appellant, while an employee of J.D. Dillingham, did embezzle, misapply and convert to his own use $4.50 of the value of $4.50, which money had come into his possession by virtue of said employment by the said J.D. Dillingham, etc. The facts in the case, in substance show the following: That he, Dillingham, testified that he lived in Austin, Travis County, Texas, in August, 1906, "at which time the defendant, Gean Butler, that negro boy there, was hauling gravel and dirt with a team of mine in said county. Defendant had worked for me about four or five weeks at the time he is charged with having taken this money from me. He had worked for me previously but it had been some time before he began hauling with the team. The arrangement between Butler and myself with reference to this hauling was this: I agreed to furnish the team, wagon and harness, feed the team, keep the mules shod, feed defendant and give him a place to sleep, and he was to take the team and do such hauling as he could get, and we were to divide the money made by him in hauling, half and half." Then the witness testifies that appellant received, in the course of his employment, $4.50 which he appropriated to his own use and benefit without the knowledge and consent of the said Dillingham. He further testified he had no intention of creating a partnership between himself and appellant. Appellant testified to the agreement, as above stated, but denies that he appropriated the money without the consent of the prosecuting witness, Dillingham. On cross-examination appellant stated that he did not regard his agreement with the prosecuting witness as a partnership. "I did not furnish anything but my labor and I guess my part was wages. Nothing was said about wages, or partnership. Nothing more was said than what Mr. Dillingham and I have told you with reference to our arrangement and the division of this money."

Appellant insists, under the above statement of the facts, that he is not guilty on the ground that the facts above stated constitute a partnership and not an agency. He cites us the cases of Napoleon v. State, 3 Texas Crim. App., 522; Ray v. State,48 Tex. Crim. 122; 86 S.W. Rep., 761; McCrary v. State,51 Tex. Crim. 496; 103 S.W. Rep., 924, and McCrary v. State, 51 Tex.Crim. Rep.; 103 S.W. Rep., 926. There are some expressions in the two cases last above named which would tend strongly to support appellant's contention. These cases, however, must be understood to apply to the particular facts there under consideration. It is frequently somewhat difficult to determine, as a matter of law, what in every case is a partnership and what is an agency, and at last, every case must, to some extent, depend upon its particular facts. The clearest definition of what constitutes a partnership is to be found, we think, in the opinion of our Supreme Court in the case of Buzard v. Bank of Greenville, 67 Tex. 83. This opinion commends itself to us as being so strongly reasoned and well supported by authority, that it should have special weight with this court. There it was held that where one furnishes money to another, under agreement, that he who received it as agent for the owner to use in a designated business, and who received a part of the net profits as compensation for his services, is not a partner with the person who advances such money. The facts in that case, in substance, show that one Buzard who lived in St. Louis made an agreement with one Pennington, whereby Buzard agreed to furnish money to buy cattle, Pennington to do the buying and any profits arising from the sale of the cattle to be divided equally between Buzard and Pennington, Pennington taking his one-half of the profits as his compensation for his skill and service. The court under this state of facts, held that Pennington was an agent of Buzard, since he had no interest in the cattle and that his part of the profits were in the nature of a contingent salary. In this case, Dillingham furnished the wagon and team and agreed to give the appellant, as his salary, one half the amount that he could make by hauling in the town of Austin. These facts do not constitute, as a matter of law, the appellant a partner with the man who owned the wagon and team, but under the authority of the Buzard case, would make his position that of agent merely. While the Buzard case has been often cited and while the principle there stated has been applied to different cases, it has not been overruled, but on the contrary has been many times followed. The principle of that case is probably not wholly in accord with the case of McCrary v. State, 51 Tex.Crim. Rep.; 103 S.W. Rep., 924, and McCrary v. State, 51 Tex.Crim. Rep.; 103 S.W. Rep., 926. It would indeed be difficult, we believe, to reconcile these cases. It is manifest, however, that in view of the charge of the court in this case, that appellant is without any just or fair ground of complaint. In this case the court instructed the jury, at the request of counsel for appellant, as follows: "A partnership is the combination by two or more persons of their capital, or labor, or skill, for the purpose of business for their common benefit.

"If you believe from the evidence in this case that as to the use of the team and the hauling of the gravel the defendant and Dillingham were partners, then that the defendant could not be guilty of embezzlement, and you will acquit the defendant." This charge was requested by counsel for appellant and was quite as favorable a submission of the issue as he was entitled to receive. The testimony of appellant was to the effect that he did not regard the arrangement between himself and Dillingham as a partnership. Dillingham also testified to the same effect. Under this testimony and in the light of the charge of the court, we think that appellant is absolutely without any ground or cause of complaint.

Finding no error in the record, the judgment is affirmed.

Affirmed.