Brown v. State

Willson, Judge.

It was not error to overrule the exceptions to the indictment. Said indictment contains all the allegations essential in charging the offense of embezzlement by an agent. (Willson’s Cr. Forms, 507-509, and authorities there cited.)

There was no error committed in overruling defendant’s application for a continuance. One of the absent witnesses named in said application appeared and testified on the trial. The facts expected to be proved by the witnesses Abram and Kennedy were wholly immaterial. As to the facts expected to be proved by the witness Brown, they were proved by the State’s witness Moss, and were not disputed.

It is ingeniously and earnestly contended by counsel for defendant that the venue of the offense is not shown to be in Bosque county. It is shown by the evidence that the money charged to have been embezzled by defendant was received by him in Robertson county on the twenty-first of December, 1886. On the next day a witness saw him with a roll of paper money in Calvert, Robertson county. The money which defendant had received was paper money to the amount of $60.00, and silver money to the amount of $2.00. The witness Bennett, who saw defendant with a roll of paper money,'traveled and remained with him until the afternoon of the twenty-fifth of said December, when defendant got on the train at Temple to go to Morgan in Bosque county. This witness is quite positive that up to the time defendant took the train at Temple he had not disposed of any of the paper money. Defendant arrived at Morgan on the said twenty-fifth of December, and on the morning of the next day had a settlement with Moss, his principal, and positively denied to Moss that he had collected any money for him from any one. It was stipulated in the contract of his employment as the agent of Moss that he should account to Moss, at Morgan, Bosque county, for all notes and money received by him by virtue of his said agency.

Do these facts sufficiently establish the venue of the offense in Bosque, the county of the prosecution? We are of the opinion they do. Article 219 of the Code of Criminal Procedure provides as follows: “The offense of embezzlement may be prosecuted in any county in which the offender may have taken or received the property, or through or into which he may have undertaken to transport it.” It is contended by counsel for defendant that the word “ property, ” used in the above article, does not mean money when considered with reference to the statute defining embezzlement. We can not agree to this view of the law. The word “property” is declared to include any and every article commonly known and designated as personal property. (Penal Code, art. 789.) Money certainly is commonly known and designated as personal property. This is also its legal definition when used in relation to the crime of theft, a crime to which the crime of embezzlement is closely allied. (Penal Code, art. 732.) We are of the opinion that the transportation of money through or into a county has the same effect with reference to the venue of the offense that the transportation of any other personal property would have. If, then, in this case, the defendant undertook to and did transport the money into Bosque county, the prosecution was properly maintained in that county. (Cole v. The State, 16 Texas Ct. App., 461; Reed v. The State, Id., 586; Cohen v. The State, 20 Texas Ct. App., 224.) We think the evidence sufficiently shows that defendant undertook to carry, and did carry the money into Bosque county. Venue, like any other matter, may be proved by circumstantial evidence.

Opinion delivered March 16, 1887.

If, however, there should be error in this view of the question, there is another view of it which, in our opinion, fixes the venue beyond any doubt in Bosque county. It was in Bosque county that it first appeared that the defendant had embezzled the money. He there denied that he had received it. He may not have conceived the fraudulent intent of appropriating it to his own use until the very moment when he denied having received it. At common law, and without reference to our statute, these facts gave jurisdiction to Bosque county, and our statute, while it does not embrace, does not exclude, jurisdiction in such case. (2 Russell on Crimes, 9 Am. ed., 470, 471; 1 Bish. Crim. Prac., secs. 41, 61, and note; 2 Bish. Crim. Prac., sec. 326.)

We have carefully considered other supposed errors complained of by counsel for defendant, but in our opinion there is no material error shown in the record, and the questions presented which we do not discuss are of no general importance. The judgment is affirmed.

Affirmed.