Reed v. State , 141 Tex. Crim. 503 ( 1941 )

It was charged in the indictment that appellant was a deputy sheriff of Gray County and "as such officer, by virtue of said office," there had come into his possession certain money which he had converted to his own use.

The prosecution was under Article 95 of the Penal Code. Deleting that part not here applicable, said article reads as follows:

"If any officer of any county * * * shall fraudulently take, misapply, or convert to his own use any money * * * belonging to such county * * * that may have come into his custody or possession by virtue of his office * * * he shall be confined in the penitentiary not less than two nor more than ten years."

In his motion for rehearing appellant renews his contention that a deputy sheriff is not a county officer in contemplation of said Article 95. It is his further contention that the case of Brooks v. State, 42 Texas Rep. 62, cited in our original opinion, is not applicable here because the prosecution in that case was under a different statute. It is true that case was predicated on what is now Article 86 of the Penal Code, but we think the reasoning in the opinion as to what is meant by officers generally has application in the present case. We cite also Crump v. State, 23 Texas Cr. App. 615; Hibbetts v. State,136 Tex. Crim. 170, 123 S.W.2d 898. Appellant refers to Hartnett v. State, 56 Tex.Crim. R., 119 S.W. 855, as supporting his contention that a deputy sheriff is not included under the term "officer" in said Article 95. Hartnett was a police officer in the City of Beaumont. It was alleged that by virtue of said office certain money which belonged to the city had come into his hands and that he converted it to his own use. It was held that the evidence failed to show that Hartnett was authorized by law to receive the money. We do not regard said case as authority supporting appellant's position. It occurs to us that Article 6869, R. C. S., (Vernon's Centennial Edition, 1936), should settle any question regarding a deputy sheriff's status as an officer of the county. Said article reads in part as follows:

"Sheriffs shall have the power, by writing, to appoint one or more deputies for their respective counties, to continue in office during the pleasure of the sheriff, who shall have powerand authority to perform all the acts and duties of theirprincipals; and every person so appointed shall, before he enters upon the duties of his office, take and subscribe to theofficial oath, which shall be indorsed on his appointment, together with the certificate of the officer administering the same; and such appointment and oath shall be recorded in the office of the County Clerk and deposited in said office." (Italics ours).

By the very terms of said statute a deputy is clothed with the "power" and "authority" to perform all the duties of his principal after he has taken the official oath. It would appear curious to require him to take an official oath and still hold that he was not an official of the county.

We are in accord with the appellant's contention that, as a general rule, a sheriff is liable in civil actions for the acts, defaults and misconduct of his deputy in the performance of a deputy's official duties, but such liability is no bar to a prosecution for a penal offense committed by such deputy.

Appellant again urges that the amendment to the State Constiution adopted in 1935, now appearing as Section 61 of Article 16 of the State Constitution in Vernon's Texas Statutes, 1936 Centennial Edition, was not self-enacting, and that until the Commissioners' Court fixed the salaries of county officers, the fees accruing to any such office was the property of the officer. Appellant contends that the State failed to make proof that the Commissioners' Court of Gray County had fixed the salary of the sheriff of said county, and therefore the money which appellant is charged with converting belonged to the sheriff and not to Gray County as alleged in the indictment. As supporting such proposition we are cited to Glaister v. Board of Commissioners of Kit Carson County, an opinion from the Court of Appeals of the State of Colorado, reported in 123 Pac. Rep. 955. We think there is such a marked distinction between the constitutional provision dealt with by the Colorado Court and the one here referred to as to render said opinion inapplicable. As we understand it, the Constitution of Colorado, Section 15, Article 14, provided that:

"Where salaries are provided, the same shall be payable only out of the fees actually collected, in all cases where fees are prescribed. All fees, perquisites, and emolumentsabove the amount of such salaries shall be paid into the county treasury." (Italics ours).

The court said:

"Until salaries were provided by law for county officers, all of the fees collected by such officer belonged to him absolutely."

Our constitutional amendment (Art. 16, sec. 61, Const. as found in Vernon's Texas Statutes, 1936, Centennial Edition), deleting the part not here applicable, reads as follows:

"All County officers in counties having a population of 20,000 or more, according to the then last preceding Federal Census, shall from the first day of January and thereafter and subsequent to the first Regular or Special Session of the Legislature after the adoption of this Resolution, becompensated on a salary basis. * * * All fees earned by * * * county * * * officers shall be paid into the county treasurywhere earned for the account of the proper fund." (Italics ours).

It will be observed that all fees are required to be paid into the county treasury under our constitutional amendment and not those above the salary limit as provided in the Colorado Constitution.

Section 61, Article 16 of the Texas Constitution was adopted in August, 1935. The Legislature, (2nd Called Session, in November, 1935, Chapter 465) put into effect the machinery for fixing the salaries of officers affected by the amendment, and the law so providing said machinery became operative on January 1, 1936. It was in effect at the time of the alleged conversion of the funds here involved. If Commissioners' Courts were remiss in fixing salaries, the officers affected by such neglect had their remedy to compel the performance of such duty.

Appellant sought to have the court instruct the jury that even though they should find from the evidence beyond a reasonable doubt that appellant admitted to Goodrich and Wilson that he (appellant) received and appropriated the money involved, that such admission, standing alone, was not sufficient to authorize a conviction. Exception to the refusal of said special charge was reserved and it is again urged in the motion for rehearing that such refusal presents reversible error. The necessity or otherwise for such an instruction as here requested turns upon the facts of the particular case. If proof of the commission of the crime depends upon the extra-judicial statement or confession of the accused, it has been held that such a charge is appropriate. If the crime is shown by evidence other than the confession which admits accused's connection with it, such an instruction is not required. See Branch's Ann. Texas P. C., Sec. 75. Cases illustrative are Silva v. State, 102 Tex.Crim. R.,278 S.W. 216; Richardson v. State, 90 Tex.Crim. R., 235 S.W. 578; Randolph v. State, 122 Tex.Crim. R., 54 S.W.2d 104; Willard v. State, 27 Texas Cr. App. 386, 11 S.W. 453; Sullivan v. State, 40 Tex.Crim. R., 51 S.W. 575; Sowles v. State,52 Tex. Crim. 17, 105 S.W. 178.

Under the facts here presented, we think the failure to give the charge does not present reversible error. The evidence shows that Mrs. Talley had practically turned over the running of the sheriff's office to appellant. She did not handle the money or make the reports. He did. She signed or endorsed such checks as were brought to her by appellant. The money here involved had been reported as earned fees. It is shown beyond question that it was paid into the office. It was the duty of appellant to report the collection and pay it into the treasury of the county. This he failed to do. These facts we think bring the case within the class where reversible error did not result from a refusal of the requested charge.

A further review of the record leads us to believe that the proper disposition of the case was made originally. The motion for rehearing is overruled.

ON APPELLANT'S APPLICATION FOR LEAVE TO FILE SECOND MOTION FOR REHEARING.