Hill v. State ( 1926 )

The appellant was convicted in the County Court of Mills County of the offense of "unlawfully knowingly and wilfully" misplacing a certain culvert upon a certain road, and the jury assessed his punishment at one cent.

This prosecution is under Art. 821, Vernon's P. C. The record discloses that the appellant had no attorney to represent him until after he was convicted, and there are no questions raised in his brief that we are authorized to consider except the insufficiency of the testimony to sustain the conviction. The evidence discloses that the appellant and two or three of his neighbors, with the consent of the commissioner of that precinct, voluntarily worked the road, and appellant bought and paid for lumber with which to construct the culvert in question at his own expense, and at the time of purchasing same, he attempted to have the lumber company charge the same to the commissioner of said precinct, which the company refused to do, but charged it to appellant, and afterwards same was paid by him. The appellant informed his neighbors at the time of constructing the culvert that if the county did not pay him for the lumber that he would take it up. It appears that after paying for said lumber he had the manager of said company to present his claim to the commissioners court on two different occasions for payment, which the court refused, and the manager of the company advised appellant to take said culvert up and use it. The record further discloses without dispute, that appellant called Commissioner Burnham of said precinct and told him he was going to take the lumber up, and that he had sold same to Commissioner Biddle of another precinct in said county, and wanted to take it up the next day. The appellant, in his own behalf, testified on this point that Commissioner Burnham over the telephone stated: "He told me it would be all right to go ahead." The appellant also testified relative to the sale to Commissioner Biddle, that he told Mr. Biddle all about the matter, and that Mr. Biddle replied as follows: "He told me to go take it up and he would use it in his precinct and pay for it, and as I had paid for the lumber and believing that I had a perfect right to take it, sold it, as I have said, to Mr. Wm. Biddle, commissioner of precinct No. 3." The record further discloses that Commissioner Burnham of precinct No. 1 took the stand as a witness in behalf of the state and did not deny the statements made by appellant as above set out, but admitted that the appellant rang him up over the phone and warned him he was going to take the lumber, because the county did not pay him for it, and in that connection stated: "I told him I would not give him authority to do that. I told him I would not have anything to do with it."

We are of opinion that the evidence in this case fails to show that the appellant "wilfully" misplaced the lumber in question, and that the evidence is insufficient to warrant a conviction. This court has many times held that the term "wilful" as used in this connection means that the act must be committed with an evil intent, with legal malice, and without reasonable grounds for believing the act to be lawful. We could cite many authorities supporting this proposition, but content ourselves in citing Meers v. State, 16 S.W. 653, and Laroe v. State,17 S.W. 934, and the authorities therein cited.

For the error above discussed, we are of the opinion that the judgment of the trial court should be reversed and remanded, and it is accordingly so ordered.

Reversed and remanded.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.

ON MOTION FOR REHEARING.