Price v. State

Conviction for conversion of the funds of an estate by a guardian; punishment, ten years in the penitentiary.

Some question is raised in this case as to the sufficiency of the proof that appellant converted any of the funds of the estate in question, in Limestone county, Texas, but we have concluded such proof sufficient. It is shown that on September 11, 1920, appellant filed with the clerk of the county court of Limestone county an annual account in which, upon oath, he states that he received from the United States government a net amount belonging to said estate of $2,240.14. This account was sworn to on September 9, 1920, before a notary public of Limestone county, Texas, which two circumstances would seem to show the personal presence of appellant in said county at said times. Among the checks issued by the United States Treasury, which are in evidence, is observed one issued to appellant as guardian, endorsed by him in that capacity, upon the back of which check is also the endorsement of a Limestone county bank of date September 10, 1920. These facts together with appellant's admission to Mr. Toomey, — also in evidence, — that he got all the moneys represented by these checks in evidence, would appear to support the conclusion that appellant converted in Limestone county, Texas, at least the amount of said check, which is $80.

We might further observe that in February, 1920, appellant returned into said court an inventory sworn to by him, together with J. Sanford Smith and Jack Womack, appraisers, showing as the funds of said estate $2,028.39 "Cash on deposit in bank". The annual account filed September 11, 1920, shows that appellant had also received from the United States Government $2,240.14 net, as above stated, — the aggregate funds of the estate shown in the two accounts mentioned being $4,268.53. Appellant filed another account on August 8, 1922, and swore to this before the county clerk of said county, in which said sworn statement is an "amount brought forward," to-wit: $2,240.14, and it is stated that the amount of $1,920 was collected by appellant between September 8, 1920, and said August 8, 1922, which total of $4,160.14 appellant swears is the amount received by him to said August 8th. The state introduced photostatic or photographic copies of checks issued by the Treasury of the United States payable to appellant as such guardian, all endorsed by him and paid by said Treasury between September 1, 1920, and August, 1922, the aggregate of which checks are $4,419.47. The testimony above referred to seems to indicate the reception by appellant as guardian of a much larger sum of money belonging to said estate than shown by any or all of his annual accounts.

Considering the questions raised of procedure, we think the indictment in this case sufficient. It follows the language of article 1538, P. C., and charges that appellant was the duly appointed guardian in Limestone county, Texas, of Green Smith, etc., and as such had charge of the estate of said Smith, and that with intent to defraud said Smith he did then and there convert to his own use certain moneys of said estate, — described in the indictment, — which moneys had come into his possession and were then and there under his care and charge as such guardian.

Appellant presented numerous exceptions to the court's charge, each of which has been considered but none of which appear meritorious.

Appellant complains by several bills of exception of the introduction in evidence of inventories, annual accounts, written applications for appointment as guardian and orders in said cause, etc., etc., the objection being that the instruments were not filed with the papers in this case three days before the trial and notice given appellant or his attorney; also that said papers were not proved up as the acts of appellant, etc. None of said bills show as a fact that the grounds of objection stated, are in fact true. Ferguson v. State, 61 Tex.Crim. Rep., 136 S.W. 465. As we understand this record, these documents were not such as are required by law to be recorded by the county clerk, hence no necessity for filing same three days prior to the trial, or for the giving of notice to appellant or his attorney. Said rule applies only to instruments which are required by law to be recorded.

Complaint appears of the introduction by the state of the vouchers or checks issued to appellant as guardian by the Treasury of the United States Government; also to the notations and endorsements on the back of said instruments. By the Acts of the 67th Congress, p. 24, sec. 306, which is title 31, sec. 46, United States Code, 1926, it is expressly provided that photostatic or photographic copies of all books, records, papers and documents in the accounting department of the United States Government, when certified to by the comptroller or assistant comptroller general, under the seal of his office, shall be admitted in evidence, etc. Under the provisions of said statute, which has application here, the testimoney referred to was admissible.

We have examined the other bills of exception, many of which present objections not verified, and are of opinion none of same present error for which this case should be reversed.

The judgment will be affirmed.

Affirmed.

Hawkins, J., not sitting.

ON MOTION FOR REHEARING.