Ferguson v. State , 80 Tex. Crim. 383 ( 1916 )

The State's able attorneys who were employed specially to prosecute this case have filed a very elaborate and lengthy argument and brief, urging vigorously and forcibly that this court erred in holding the indictment herein defective. They invoke several well established doctrines as applicable herein, such as surplusage, and that an indictment can properly allege conjunctively all the ways when there are more than one in which a given offense may be committed, and that proof of either will sustain a conviction, and some others, citing and quoting very extensively many decisions of this court on these points. All these doctrines were thoroughly considered before the original opinion was prepared and handed down, and upon the most mature deliberation we concluded none of them had any application to this case. We deem it unnecessary to discuss any of these doctrines.

There can be no question but that if the statute under which this prosecution was had had prescribed only one offense and three or more ways in which it might have been committed, the indictment could legally and properly have charged conjunctively in one count the offense as committed in all these ways; but as held in the original opinion, said statute prescribes three separate and distinct offenses and not three ways of committing one offense. Said statute (P.C., art. 523) copied in the original opinion, was taken literally as applicable to our State banks from article 5209 of the United States Revised Statutes as applicable to national banks. The Federal courts, in construing that statute, have expressly held, that it provides for at least three separate and distinct offenses, towit: (1) embezzlement; (2) abstraction, and (3) wilful misapplication, of any of the moneys, funds or credits of such bank. (United States v. Lee, 12 Fed., 816, and many other cases from the Federal courts to the same effect.) After the most thorough search we have been unable to find any decision of any Federal court under that statute which holds, or intimates, that it prescribes but one offense and three ways of committing it. Each of the words, "embezzles,""abstracts" or wilfully "misapplies," must be given effect. The word misapply was intended to include acts not covered by the previous words embezzle or abstract. To give misapply the same meaning as the word embezzle is to eliminate a word from the statute. This can not be done. (United States v. Fish, 24 Fed., 585-591.) The terms embezzlement and misapplication used with reference to the funds of a bank are not convertible terms. (Jewett v. United States, 100 Fed., 832-840.) The word embezzle refers to acts done for the benefit of the actor as against the bank, while the word misapply covers acts having no relation to pecuniary profit or advantage to the doer thereof. (United States v. Taintor, 28 Fed. Cas., 7-9.) Abstract as used in the statute is a word of simple, popular meaning, without ambiguity. It means to take or withdraw from; so that to abstract the funds of a bank, or a portion of them, is to take and withdraw from the possession and control of the bank moneys, etc., alleged to be so abstracted. It has but one meaning, being that which is attached to it in its ordinary popular sense. (United States v. Northway,120 U.S. 327; 30 L. Ed., 664; United States v. Harper, 33 Fed., 471.) Embezzlement under this statute involves two essential elements: (1) A breach of duty or trust with respect to the moneys, etc., of the bank embezzled, which must have been lawfully in the custody or possession of the principal by virtue of his office or employment, although such possession need not have been exclusive of that of other officers, clerks or agents; and (2) wrongful appropriation of such moneys, etc., to his own use with intent to injure or defraud the bank or others. Embezzlement may include the offenses of abstraction and wilful misappropriation, but either of the latter offenses may be committed without embezzlement. (3 Michie's Banks and Banking, p. 1932; United States v. Breese, 131 Fed., 915; United States v. Youtsey, 91 Fed., 864.) An indictment for embezzlement must allege the moneys or funds were intrusted to the possession of the defendant, but an indictment for abstraction or misapplication need not. (3 Michie's Banks and Banking, p. 1948; United States v. Northway, supra; United States v. Johnson, Fed. Cas. No. 15,483.)Misappropriation means wrong appropriation; to turn to a wrong purpose. (Hagerty v. Badkin, 66 A. 420.) The cases from the various Federal Circuit Courts of Appeal are not in harmony. There perhaps is some conflict between them. We have cited above those which we think are correct and in point.

The cases of Green v. State, 66 Tex.Crim. Rep., and Ferrell v. State, 68 Tex.Crim. Rep., particularly relied upon by the State, as well as other cases cited, we think, have no application to this case. In all those cases we were discussing an indictment under a statute which did not make two or more separate and distinct offenses but the two or more methods of committing one offense, and all these cases properly considered clearly make that distinction.

Our statute, in various provisions, prescribes what allegations in an indictment shall be deemed sufficient. Among others, article 451, C.C.P., subdivision 7, states: "The offense must be set forth in plain and intelligible words." Also article 576, C.C.P., expressly authorizes an accused to make a motion to quash the indictment for the want of any of the requisites prescribed by said article 451. One ground of the motion to quash this indictment was because "the language of the allegations thereof are confused, indefinite and unintelligible." This ground did not follow the exact language in the statute that the offense was not set forth "in plain and intelligible words," but we think, without question, it embraced, and was intended to embrace, that provision of the statute, and not only authorized but required the court to pass upon it, and we are still of the opinion that the allegations of the indictment were so confused, indefinite and unintelligible as not to charge the offense in plain and intelligible words. That alone would require that this case should be reversed and dismissed, as we held in the original opinion.

Another ground of appellant's motion to quash said indictment was that it does not charge any offense against the laws of the State. The statute (art. 575, C.C.P.) expressly provides that an exception of substance to an indictment is that it does not appear from the face of it that an offense against the law was committed by the defendant. We are also of the opinion that said ground to quash it sufficiently embraced and raised this question of the sufficiency of the indictment under said article of the statute, and this also not only authorized but required the lower court to pass upon the indictment on that ground. The lower court did so and overruled that ground of the motion, as well as all others.

The State's attorneys cite Schoolfield v. State, 29 Tex. 502 [29 Tex. 502], wherein Judge Bell held that the motion or demurrer to quash the indictment in that case which was simply and solely because it was "insufficient in law," did not inform the court whether the objection was one of form or of substance, and that the lower court was not called upon to pass upon any such general objection. They also cite in that connection the case of Phillips v. State, in the same volume, page 226, wherein that decision of Judge Bell's was cited. In the Phillips case the Supreme Court did not follow the Schoolfield case, but, on the contrary, did consider the objection in that instance to the effect solely that the indictment was "insufficient and charged no offense known to the law," and held as the lower court did, that the indictment was good.

This court from its foundation, continuously down to the present time, has uniformly held that the validity of an indictment as to substance may be attacked at any time in this or in the lower court, even after an affirmance in this court and for the first time on motion for rehearing. White v. State, 1 Texas Crim. App., 211; Holden v. State, 1 Texas Crim. App., 225; Cox v. State, 8 Texas Crim. App., 254; Woolsey v. State, 14 Texas Crim. App., 57; Maddox v. State, 14 Texas Crim. App., 447; Gonzales v. State, 58 Tex.Crim. Rep.; Dunn v. State,58 Tex. Crim. 91; Jasper v. State, 73 Tex.Crim. Rep.; Ryan v. State, 176 S.W. Rep., 49.

In several well considered cases this court has held that if the indictment is duplicitous on its face, the defect is one of substance and is ground for an arrest of the judgment, and, in effect, can be raised at any time. Weathersby v. State, 1 Texas Crim. App., 646; Hickman v. State, 22 Texas Crim. App., 441; Scales v. State, 46 Tex.Crim. Rep.; Wood v. State,47 Tex. Crim. 543. The State claims that as no motion was made to quash the indictment specifically because it was duplicitous and even if it was, alleging in one count three separate and distinct offenses, it was too late to raise such question after verdict, and call our attention to Cabiness v. State, 66 Tex.Crim. Rep., and Green v. State,66 Tex. Crim. 446, where we cited some authorities to that affect. It may be that under a peculiar state of fact such doctrine would apply, but we think it does not in this case. It is noticeable that while the court herein submitted conjunctively to the jury a finding on all three offenses embraced in the indictment and the verdict of the jury was general, the court applied the verdict and conviction by the judgment to aiding and abetting embezzlement. The testimony by the State not only fails to show embezzlement, but its own evidence positively establishes no embezzlement by Burns, hence there could be no aiding and abetting in embezzlement by appellant. However, that has nothing to do with whether or not the indictment was fatally defective.

We have given this case, and the questions arising in it, an unusual amount of investigation and consideration and also have carefully studied the State's brief and motion for rehearing, and we are thoroughly satisfied that our rulings in the original opinion were correct. The motion is, therefore, overruled.

Overruled.