Tripp v. State

The appellant was convicted of embezzlement in the Criminal District Court of Tarrant County, and his punishment assessed at six years in the penitentiary.

Briefly stated, the record shows that the appellant was an attorney at law practicing in the city of Fort Worth, and that Miss Lizzie Alexander delivered to him, for the purpose of collection, two insurance policies, upon which the appellant collected the sum of $836. It was the contention of the state, and evidence was introduced to that effect, that the prosecuting witness, Miss Alexander, received only $31 of this sum from the appellant. While the appellant failed to testify, he introduced evidence to the effect that the prosecuting witness was paid by him the sum of $325 in cash, and that she authorized him to buy for her $300 worth of stock in an oil company out of the remainder due her, which, in connection with his commission, absorbed all of said amount, and that he had a full and final settlement with her in regard to this transaction.

We find three bills of exception in the record. Bill of exception No. 1 complains of the refusal of the court to grant the appellant's application for a continuance, based upon the want of the testimony of one J. J. Garrett. This application was contested by the state, and it appears that Garrett had never been subpœnæd and no effort had been made to secure his attendance other than making an application for subpoena and placing same in the hands of the sheriff, who returned said application on the 7th of April with the statement that the witness could not be found in Tarrant County. It further appears that the sheriff thereafter informed appellant's attorneys that he was unable to locate said witness; that the case was postponed on one occasion at the instance of the appellant on account of sickness in his family, and did not come to trial until June 10, 1926; and that no effort was made to secure the attendance of said witness during this interval, nor was there any showing made of any likelihood of securing this testimony by a further postponement or continuance of the case. This bill, as presented, shows no error.

Bill of exception No. 2 complains of the action of the court in permitting the prosecuting witness, Lizzie Alexander, to testify that she knew a lawyer by the name of Lipscomb and met him about the middle of August. The objection to this testimony was that it was irrelevant and incompetent. This bill, as presented, shows no error, in that it fails to point out how the acquaintanceship or meeting with this lawyer affected the appellant in any manner. This court has repeatedly held that a bill of exception complaining of the admission of testimony to be sufficient, must set out sufficient facts in and of itself to enable the court to determine that said testimony was not admissible. Otherwise, the court will presume that the ruling of the trial court was correct. Hennington v. State, 101 Tex. Crim. 12; many other authorities to the same effect could be cited if necessary.

Bill of exception No. 3 complains of the action of the court in permitting the prosecuting witness to testify to the facts concerning her employment of the attorney, McLean. This bill, as presented, shows no error. It appears that said witness, on cross-examination by appellant's counsel, testified that she employed said attorney in August, and upon re-direct examination by the state she was permitted to explain that she had never employed said attorney and never agreed to pay him a cent, but intended to pay him if she ever got anything.

The sentence in this case commits the appellant to the penitentiary for the full period of six years, contrary to Art. 775, C. C. P. Said sentence is reformed, under Art. 847, C. C. P., so as to read that the appellant is committed to the penitentiary for not less than two and not more than six years.

After a careful examination of the entire record, we are of the opinion that the judgment of the trial court, as reformed, should be affirmed, and it is accordingly so ordered.

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.