East v. State , 146 Tex. Crim. 396 ( 1942 )

The State has filed a motion for a rehearing, claiming that our original opinion herein is in error in that it is there held that the State in this case had failed to establish the corpus delicti; that is, that the State had failed to show, outside of the confession, that an offense against the law has been committed.

The general doctrine is laid down that an extrajudicial confession can be utilized, however, in aid of the establishment of an offense against the law, and we are cited to many cases thus holding, chief among them being the Kugadt case, 44 S.W. 989, 38 Tex.Crim. R., wherein it is said: "In other words, in the establishment of the corpus delicti the confessions are not to be excluded, but are to be taken in connection with the other facts and circumstances in evidence. See note 3 to case of State v. Williams, reported in 78 Am. Dec., p. 254. And this rule is recognized in this State. See Jackson v. State, 29 Texas Crim. App. 458. Said case quotes with approval an excerpt taken from 4 American and English Encyclopedia of Law, p. 309, as follows: 'A confession is sufficient, if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of the defendant's guilt in the minds of a jury beyond a reasonable doubt.' 'Such suppletory evidence need not be conclusive in its character. When a confession is made, and the circumstances therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury in rendering a verdict asserting the guilt of the accused. "Full proof of the body of the crime, the corpus delicti, independently of the confessions, is not required by any of the cases; and in many of them slight corroborating facts were held sufficient".' 3 Am. and Eng. Enc. of Law, p. 447. We take it that there can be no question that the prosecution is permitted to prove by circumstantial evidence the corpus delicti, and in aid thereto use confession of the appellant."

Again, it is said in Kincaid v. State, 97 S.W.2d 175: "In many of the cases on the point under discussion appear statements to the effect that a bald confession, without other circumstances to sustain it, will not suffice; or that the naked confession of one accused, will not be enough; but none of the cases attempt to lay down any arbitrary rule, and the substance of their holdings is that it is only necessary that there be other facts and circumstances in evidence strengthening and confirming the fact that a crime has been committed with which the accused identifies himself by his confession."

Again, we said in Harris v. State, 64 Tex.Crim. R., 144, S.W. 232, that: "It is true that this court has held, and it is well established, that a confession alone in and of itself, is insufficient to support a conviction in a case of this character, or any other. It is needless to cite the authorities to that effect because they are uniform. But it is as firmly established by the decisions of this court that the confession may be used to aid the proof of the corpus delicti, and if all of it together is sufficient to satisfy a jury of the truth of the charge beyond a reasonable doubt, the conviction must be sustained (this upon citation of many authorities)."

It is also said in Lott v. State, 60 Tex.Crim. R., that: "Again, an extrajudicial confession standing alone is not sufficient proof of the corpus delicti. But a confession is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction in the minds of the jury beyond a reasonable doubt."

Again, in the early case of Jackson v. State, 29 Tex. Ct. App. 464, we find the following:

"A confession is sufficient if there be such extrinsic corroborative circumstances as will, taken in connection with the confession, produce conviction of defendant's guilt in the minds of a jury, beyond a reasonable doubt. 4 Am. and Eng. Ency. of Law, p. 309.

" 'Such suppletory evidence need not be conclusive in its character. When a confession is made, and the circumstance therein related correspond in some points with those proven to have existed, this may be evidence sufficient to satisfy a jury rendering a verdict asserting the guilt of the accused. Full proof of the body of the crime, the corpus delicti, independently of the confession, is not required by any of the cases, and in many of them slight corroborating facts were held sufficient.' See the cases cited and collated in 3 American and English Encyclopedia of Law, p. 447."

We find the case of Mills v. State, 59 S.W.2d 147, a case of similar import to the present one to some extent. In that case Arthur Mills was the tax collector of McLennan County, and, according to reports rendered by him, he was short in his accounts with the county. The accused admitted that he owed the county about $40,000.00 and was making arrangements to pay the same. It was also shown that a portion of this money was paid into the county treasury by a surety company. It was also shown that Mills admitted to a newspaper reporter that he owed the county about $40,000.00. This court held that such facts were sufficient to establish the corpus delicti, when taken in connection with the accused's confession. It was also therein held that such confession was not an extrajudicial confession, such being required to be made as a matter of law.

Let us draw an analogy of the Mills case with the present one:

Appellant was an officer of the court, see Art. 2293, R. C. S. 1925; he shall take the oath and give bond, Art. 2296, R. C. S.; he shall have certain powers, and carry out the orders of the court appointing him, Art. 2297, R. C. S., and shall perform certain duties as provided by law, as well as carry out the orders of the court; he shall sue and be sued as such.

In the present case, appellant as an officer of the court had charge of these apartments for about five years; he took in large sums of money and paid out large sums. Upon a final report of his activities being called for, he prepared a report of receipts and disbursements, although not signed by him, and delivered same to an attorney; he told the attorney that the report showed that appellant owed the estate about $17,000.00 and that he had spent such money, thus evidencing the fact that he was short that amount. The full report is in the record, having been introduced, and evidently shows such a shortage. In approving this report, the trial court in the receivership ordered certain amounts to be paid into that court; it is shown that such was not done by appellant; it is shown by the report, as well as by others, that about $6,500.00 was paid as taxes by appellant, and such payment was set forth in the report of receiver, thus corroborating a portion of the report. It is also shown by a letter addressed to one of the owners of the apartments and signed by appellant, in which appellant admits his indebtedness to the owners of the apartments, and offers to pay the sum of $3,000.00 and to give promissory notes for the balance. In such letter he reiterates the statement that his report is correct to a penny. He then sets forth the proposition that if the owners do not accept the proposition above set forth, then they will only receive $2,000.00 cash from the surety company on his bond, and will lose the remainder, and only have appellant behind the bars, where he can not pay them the amount due, according to this report.

It was laid down in Mills v. State, 59 S.W.2d 149, that: "A jury may be warranted in rendering a verdict of guilty where the circumstances related in a confession correspond in some points with those proven to exist."

The rule relative to a corroboration of a confession is not as strict as that regarding an accomplice, although these rules are sometimes construed to be of similar strictness.

We also said in Kincaid v. State, 97 S.W.2d 175, that: "It would hardly be contended that the same rule should be applied to the corroboration of the confession as to the corroboration of an accomplice. By express statute it is made imperative that an accomplice be corroborated by evidence tending of itself to show the guilt of the accused, but we have no such statute requiring corroboration of the confession. * * * How different the case of a person who confesses his own guilt, and in a sense seeks punishment, not for another, but himself."

Let us see what we have in this case. We have a report coming from appellant showing that he owed this estate the sum of about $17,000.00; portions of the report were shown to have been true; we have him being ordered to pay over certain of these moneys in a certain way; we find him failing to do so, making the statement that he had already spent the money and couldn't pay; we find that such moneys had not been paid; we find him again, admitting that he had utilized such money and could not pay, but offering to pay $3,000.00 thereof, and to evidence the remainder by promissory notes; failing to make this agreement, he predicted his own confinement behind the bars, evidently meaning the prison bars. Under these circumstances I think the two confessions of his recognized wrongdoing have found a sufficient corroboration in the circumstances and proven facts to show that an offense has been committed; that the owners of these apartments had taken from them illegally the sum of $17,782.20, which is the amount shown to be due from appellant by the judgment of the trial court in the civil case No. 9666, in which appellant was a receiver, which report was ordered filed and was approvel by the trial court on September 2, 1938, such report covering about 145 pages in the present statement of facts. I think that the corpus delicti of an offense has been established, and it is apparent that such a shortage existed not only by the report of the receiver but by other proof as well, and that appellant, who had this money in his possession, unlawfully spent the same.

Now in the order overruling the State's motion for rehearing agreed to by my Brethren, it is said, in substance, that the troublesome question for the State is that it failed to show by any corroborating evidence that appellant's peculations took place within the period of limitation by any testimony other than the confession.

It is shown that appellant was for many years in charge of these apartments, and many of them were occupied from time to time; that he received and disbursed sums of money, and was actively in charge thereof under orders of the court, such property being in litigation. True it is that the amounts of receipts and disbursements had to be taken from appellant's reports, he being in charge thereof, and it does appear therefrom that he had received within the period of limitation about the sum of $6,300.00, of which he had made no payment, such being received in the last twelve months of his receivership, and was the balance of receipts over disbursements during such period. Such report showed that in each and every month in the year previous to the filing of such report that appellant had received more than $50.00 above his disbursements, and all of which balances he failed to account for. It is shown by such report, as well as the trial court's order in the civil suit, that appellant owed to the owners of such apartments the sum of $17,782.20, which he was ordered to pay, and which it is shown he never did pay.

It is further shown by the testimony of F. M. Bralley, an attorney in the civil suit, that: "I had requested him (appellant) to make a detailed accounting of his receipts and disbursements during the period of time he was serving as Receiver, and after he struck his balance on his books that I would want to attach to it either a letter from the bank or a certificate from the bank, showing the balance in the bank to be the same as that shown on his report. The letter from the bank or the certificate from the bank was lacking. That certificate was supposed to reflect the cash in the bank being the same amount as the balance on the report. He did not attach that to the report that he gave me. I talked to him about that, and he told me that he couldn't furnish me that. He said he didn't have the money; that he was sorry. He said the money had been spent; that he had spent it. He did not say how he had spent it or where he had spent it. In our discussion he said that he spent the money and just didn't have it, that was all. As to how much money the defendant told me he was short at that time — well, all of the balance that was shown by the report."

It seems to the writer that quite a considerable shortage has been shown in appellant's accounts by means of this report; that by letter as well as word of mouth he has admitted the same, three times in all has such been shown, and that a large portion of such shortage is shown to have taken place within less than three years prior to the filing of the indictment.

I think the State's motion herein should be granted and this cause should be affirmed. Thus thinking, I respectfully enter my dissent herein.