Ferrell v. State

Appellant, in his motion for rehearing, contends that this court erred in holding that the court below did not err in refusing to give his special charge requested, which is quoted in the original opinion herein. And that this court erred in holding that the evidence in this case was sufficient to warrant the conviction, because the evidence did not establish that the money embezzled by appellant was "current money of the United States." Appellant cites and quotes from the opinion of this court in Lewis v. State, 28 Texas Crim. App., 140, and Kimbrough v. State, 28 Texas Crim. App., 367, and Summers v. State, 45 Tex. Crim. 423, and from other cases along the same line. All these cases are practically bottomed on Block v. State, 44 Tex. 620, wherein it was held that money, under our statutes, meant only that character of money under our law which was legal tender and did not include bank bills, though they pass as current. If this line of decisions is now the law, then appellant's contention might be correct; but in several well considered cases by this court since the decisions in those cases were announced, this court has held expressly to the contrary and specifically overruled all such cases. In the case of Berry v. State,46 Tex. Crim. 420, Judge Henderson cites some of these cases and particularly Lewis v. State, supra, Summers v. State, supra, and others, and said:

"However, the decisions on this subject have not been uniform. In Kimbrough v. State, 28 Texas Crim. App., 367, it was held that United States paper currency embraces every character of paper currency issued and authorized to be issued as a medium of exchange and circulated as money under the authority of the laws of the United States, and included national bank bills or United States gold or silver certificates. And this view appears to have been followed in Dennis v. State, 74 S.W. Rep., 559, and other cases. In Summers v. State, supra, another view was taken. There it was held that the indictment charged theft of one five-dollar bill current money of the United States of the value of five dollars, only included United States treasury notes; that is, legal tender notes and demand notes of the United States. This case followed the line of decisions first above noted, and is not in harmony with Kimbrough's and Dennis' case and others. From the decisions on this subject it appears that the difficulty has been in regard to holding gold and silver certificates of the United States and national bank bills to be currency money of the United States. In order to support the view that these are not to be considered money of the United States, some nice distinctions have been drawn in construing article 866, Penal Code, as to what is meant by money thereunder. Without undertaking to discuss or criticise those opinions, we would observe that we can see no good reason why an indictment which charges theft of current money of the United States, or of currency of the United States, should not include United States gold and silver certificates and national bank bills of the United States. The payment of these, as we understand the Federal statutes, are safeguarded by law, and are in effect guaranteed by the United States government. Gold and silver certificates are issued directly by the government, predicated on gold and silver deposited in the treasury of the United States, and the government issues these directly. National bank bills are issued by the government predicated on bonds deposited by national banks with the government, which in turn delivers said bank bills to the particular national bank to which they were issued; and all these pass current as money at their face value in every State of the Union. According to the familiar principle `that things which are equal to the same thing are equal to each other,' we hold that, where an indictment charges theft of bills `in the currency of the United States of America,' or theft of `current money of the United States of America,' giving the denomination and value thereof, the allegation can be proven by theft of United States legal tender treasury notes, or of United States demand notes, or of United States gold or silver certificates, or of national bank bills of the United States. We are not now discussing metallic coin. Of course, gold and silver coins of the United States have always been treated as money under our statutes. All cases inconflict with this opinion are hereby overruled.

"We accordingly hold that in this case there was no variance between the proof introduced and the allegations in the indictment. That is, the witness Kelly testified that he was unable to say whether the $5 and $10 bills lost by him were treasury notes, national bank bills, gold or silver certificates of the United States. If they were of the denomination alleged in the indictment, and were any of the character of currency stated above, it was sufficient proof of the kind of currency alleged in the indictment." That case was a conviction for theft from the person.

Again, in another well considered case, wherein the opinion was rendered by Judge Henderson, Butler v. State, 46 Tex. Crim. 287, which was an embezzlement of public money belonging to a county, precisely the same character of case as this, he said:

"Appellant complains of the action of the court instructing the jury, in effect, that while appellant was treasurer he was only authorized to receive legal tender metallic coin or legal tender notes and current money of the United States of America, for and on behalf of the county, and that he was only authorized to pay the same character of money to the county. If this clause of the charge means legal tender metallic coin or legal tender notes only, then the court's charge under the recent authorities was evidently too restrictive. But it occurs to us that the further expression, `current money of the United States of America,' is more comprehensive and would cover any kind of currency of the United States of America which is guaranteed by the government and passes as money. If the latter is a correct interpretation, then it would cover any character of current money of the United States; and as stated before, this has been recently so held. See Berry v. State, supra. And on this same subject see article 941, Penal Code, which refers to the embezzlement of money and makes this term include, besides gold and silver, copper or other coin, bank bills, government notes or other circulating medium current as money. If this construction were not correct, then it would almost invariably be impossible to determine what character of funds a public official may have embezzled; and it would rarely occur that the State would be able to show an embezzlement of legal reader notes of the United States.

"Appellant requested a number of charges to the effect that defendant could only be convicted in case it should be shown he had embezzled national bank notes or United States treasury notes. These charges were refused by the court, and in accordance with our view, as expressed above, they were correctly refused. But even if it be conceded that the court's charge as given restricted proof of embezzlement to coin money of the United States and United States treasury notes, we fail to see how this could injure appellant. He made no effort to satisfy his confessed defalcation to the county of some three thousand dollars in any kind of currency or money or in any other character of funds. He had none, and tendered none. He admitted that he had money belonging to the county, and it must be assumed that this was such money as he was authorized to receive; but if in liquidation of this he had offered national bank bills or gold or silver certificates or warrants, or other funds, and these had been refused by the county, then he would have just cause for complaint."

Appellant also calls our attention to the fact that the case of Lewis v. State, supra, has many times and in many cases been referred to and approved. In most, if not all, of the cases where the Lewis case was cited with approval it was on that part of the decision which held the indictment sufficient which described the stolen or embezzled money as "Five Thousand Five Hundred Dollars in money, the same being then and there current money of the United States." It is true the distinction, as stated by Judge Henderson in the Butler case, supra, unfortunately has not always been kept up and noted by the court in the decisions.

In order that in future there may be no misunderstanding about the holding of this court, we here specifically state that we will adhere to the decisions in Perry v. State, supra, and Butler v. State, supra, and will hold that current money of the United States, or any such like general description, whether in theft or any character of embezzlement case, means and includes gold and silver, copper or other coin, bank bills, government notes or other circulating medium current as money; and also includes gold and silver certificates and national bank bills, and will adhere to the decision in the Berry case, supra, which overrules all cases in conflict therewith. See also Dennis v. State, 74 S.W. Rep., 559; Anglin v. State, 52 Tex.Crim. Rep.; Kirk v. State, 35 Tex.Crim. Rep.. What is said and quoted above in the Butler case is peculiarly and specially applicable to the facts and law of this case.

The motion is overruled. Overruled.