Burgess v. State

The appellant was convicted of the offense of unlawfully and fraudulently taking, misapplying, and converting to his own use money belonging to Collin County, and his punishment assessed at confinement in the penitentiary for two years.

Appellant was Tax Collector of Collin County from December 1, 1920 to December 31, 1924, inclusive. The indictment contained numerous counts, but only the tenth count was submitted. It was proved by the state that after an audit of appellant's books it was found that appellant was due the general ad valorem fund of said county the sum of $26,322.98 for collections during the month of December, 1924. It was also shown by the treasurer of the county that the appellant made one payment on the funds due said fund for collection of taxes in December, 1924, and the amount he paid was $20,391.20; that the appellant had never paid any other amount of money on said fund. This showed a shortage of appellant in his account for said month of December in the sum of $5,931.78. The state further proved that the appellant, on numerous occasions, took money out of the drawer and put the same in his pocket without leaving any memorandum showing the amount taken. Tom C. Dowell, a witness for the appellant, who was his chief deputy during the entire time appellant was tax collector, testified that in the summer of 1923 a shortage of several thousand dollars was discovered and that the appellant knew of this shortage. The state also introduced the witness O. T. Lyles, an expert accountant and auditor, who testified that he had made an audit of the appellant's books and found that the appellant was short and due Collin County the sum of $7,040.36, not including partial payments. The state also proved a shortage of $979.82 on partial payments on taxes. The amount alleged in the indictment was the same as the amount of shortage for the month of December, 1924.

The appellant testified in his own behalf and denied in toto that he had fraudulently taken or misapplied any moneys belonging to the county and offered proof tending to show that he had paid over to the county all that it was justly and rightly entitled to, and undertook to satisfactorily account for the alleged shortage by offering proof that there were errors in the keeping of the books and in the tax rolls of the county. He offered proof that two of the deputy tax collectors working in his office had misapplied or converted to their own use a sum equal to the total of the alleged shortage. There was also proof that the appellant accepted checks of tax payers in payment of taxes and reported such taxes as collected and said checks were afterwards turned down or dishonored and the appellant was not reimbursed therefor. Appellant also defended on the ground that if he took, misapplied, or converted the amount of such shortage to his own use the same was so taken, misapplied, or converted under the mistaken belief that he was not taking more money than he was legally entitled to as fees of the office earned by him during his four years tenure in office. Appellant also contends that if there was a shortage same was brought about in whole or in part by an overpayment made by him in the school funds by mistake and without fraudulent intent, contending that such overpayment to the school funds has not been adjusted or collected.

There is brought forward in the record for our review nineteen bills of exception and fifteen special charges requested by the appellant, five of which were given by the court.

The first ten bills of exception complain of the action of the trial court in refusing to give appellant's requested instructions to the jury. We have carefully read the court's main charge and the five special charges requested by the appellant and given by the court, and, in our opinion, the charge amply, practically, and in a fair manner, presented all the law applicable to the facts, and the court did not err in refusing appellant's specially requested instructions complained of in said ten bills of exceptions.

Bill of exception No. 11 complains of the action of the learned trial judge in overruling appellant's objections to the court's main charge, and, in said bill, sets out in full said objections.

Appellant's first objection to the court's charge is that the court did not charge upon the affirmative defense of appellant, to-wit, that the apparent shortage occurred by reason of the accumulation of errors in charging the appellant with sums for which he was not liable and in failing to credit the appellant with credits to which he was entitled. An examination of the court's charge discloses that this phase of the case was amply and ably submitted to the jury for their consideration, as well as appellant's defense of mistake, as shown by the evidence, and complained of in his second objection to the court's main charge.

Appellant, in his third objection to the charge, complains of the court's failure to charge on circumstantial evidence. The state made out a prima facie case against the appellant by direct and positive evidence. Where this is done, it is not necessary for the court to charge on circumstantial evidence.

The second paragraph of the court's main charge discloses that the court corrected his main charge, thereby curing the objection pointed out in appellant's fourth and fifth objections.

An examination of the seventh paragraph of the court's main charge discloses that same was corrected so as to cure the objection complained of in appellant's sixth and seventh objections.

Appellant complains in his objection to paragraph five of the court's main charge that the court should have instructed the jury on the question of reasonable doubt, but reference to paragraph five of the court's main charge shows that this objection was cured.

Appellant contends that it was error for the court to omit the reasonable doubt charge from the sixth and seventh paragraphs of the court's main charge and filed his exceptions pointing out said omission. After these exceptions were presented, the court changed paragraphs 5 and 7 and added paragraph 8, as shown by his qualification to said bill of exception No. 11, thereby modifying his charge to meet said objections. Paragraphs four, five and eight of the court's main charge, and appellant's requested special charge No. 7 given by the court, all embrace the law of reasonable doubt, and, in addition to this, paragraph nine of the court's main charge applies the law of reasonable doubt to the entire case, and this is sufficient under the facts. Regittano v. State,257 S.W. 906.

The other matters shown by bills of exception in the record are not considered of sufficient importance to require discussion at our hands.

Appellant complains that the court erred in refusing to quash the indictment on the ground that said indictment was duplicitous. Appellant's motion to quash applied specifically to each count in the indictment. The tenth count in the indictment — the one upon which appellant was convicted — follows the form prescribed by Judge White in his penal code, 1911 revision, Art. 103. It also follows the form approved by the court in Ferrell v. State, 152 S.W. 901. In the case of Ferguson v. State, 189 S.W. 271, at page 274, relied upon by the appellant in support of his contention that the indictment is duplicitous, the court seems to uphold the rule laid down in the Ferrell case, supra. In the Ferguson case, supra, the appellant was indicted for an offense denounced by Art. 544 of the Penal Code for embezzling or misapplying funds of a state bank. The court held this Art. 544 denounced three separate offenses of embezzlement. We find in the Ferguson case, the court upheld the Ferrell case in the following language:

"The case of Green v. State, 66 Tex.Crim. Rep.,147 S.W. 593, and Ferrell v. State, 68 Tex.Crim. Rep.,152 S.W. 901, 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 makes that distinction."

It will be seen that the court in the Ferguson case recognized a distinction between Art. 95 and Art. 544, Penal Code. Art. 95, the statute under which appellant was convicted, is similar to the general statute under embezzlement — Art. 1534. This court has many times held that indictments using the terms "fraudulently embezzle, misapply, and convert to his own use" are good.

We, therefore, conclude that the indictment in the instant case is not subject to the objection that it is duplicitous and that the court did not err in overruling the appellant's motion to quash. Penal Code 95; Hooper v. State, 279 S.W. 449; Ferguson v. State, 189 S.W. 271; Ferrell v. State,152 S.W. 901; Green v. State, 147 S.W. 593; White's Penal Code, Art. 103, Revision of 1911; Tankersley v. State, 288 S.W. 222.

A careful review of the record has failed to disclose any valid or sufficient reason why the judgment should be reversed, and it is therefore affirmed.

Affirmed.

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.