Adamson v. State
| Decision Date | 10 February 1943 |
| Docket Number | No. 22256.,22256. |
| Citation | 171 S.W.2d 121 |
| Parties | ADAMSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Childress County; A. S. Moss, Judge.
J. W. Adamson was convicted of conversion, and he appeals.
Reversed and remanded.
J. R. Porter and W. T. Link, both of Clarendon, and E. T. Miller, of Amarillo, for appellant.
Spurgeon E. Bell, State's Atty., of Austin, for the State.
Appellant was convicted of the crime of conversion, and assessed a penalty of two years in the State prison.
The appellant was indicted by a grand jury of Donley County for a conversion of funds belonging to Hedley Independent School District in said county.
Upon the calling of this case for trial, in Donley County, appellant filed a motion to quash the indictment herein because of the fact that two of the persons constituting the grand jury that returned this indictment were not qualified grand jurors, in that, although subject to a poll tax, they had not paid the same for the current year. This motion was by the trial court overruled, and due exception taken, whereupon on the court's own motion the venue of this case was changed to Childress County for reasons satisfactory to that court.
The motion to quash evidences that the trial court heard evidence relative to the two grand jurors and their failure to pay a poll tax, yet we find no such evidence in the record nor any agreement relative thereto. The mere allegation that such grand jurors had failed to pay a poll tax, and that they were subject to such tax, does not amount to proof of such an allegation, and in the presence of a presumption of the correctness of the trial court's ruling, we do not feel inclined to hold that the refusal of the trial court to quash the indictment was error. The motion to quash does not support itself; there should have been some proof offered and shown in the record. For aught we know, these gentlemen complained of may have paid their poll tax, or they may not have been subject to pay such tax. See Kimbrough v. State, 124 Tex.Cr.R. 191, 61 S.W.2d 110.
Again, a motion to "quash the grand jury and the indictment" was presented in Childress County, which motion came too late. See Art. 564, C.C.P.; also Vasquez v. State, 76 Tex.Cr.R. 37, 172 S.W. 225; Fitzgerald v. State, 87 Tex.Cr.R. 34, 219 S. W. 199; Scitern v. State, 87 Tex.Cr.R. 112, 219 S.W. 833; Parr v. State, 108 Tex. Cr.R. 551, 1 S.W.2d 892.
Bill of exceptions No. 1 complains of the introduction of an envelope handed to the witness Charlie Barnett, who had paid certain taxes to appellant, and appellant had enclosed such tax receipts in an envelope and handed same to the witness; included in such envelope was a receipt for taxes of the Hedley Independent School District for the sum of $131.87, such being the amount of money alleged in the indictment to have been converted. We think the same was clearly admissible, as well as the tax receipt for such payment, which bore the signature of appellant, and came from his hand.
It is contended by appellant that he is incorrectly indicted herein as an officer of the government; that he was tax collector for Donley County and not for the School District; that he could not hold two offices of emolument at the same time, and that he had never qualified, taken the oath, nor given bond as collector for the School District. We held in the case of Dupuy v. State, 132 Tex.Cr.R. 539, 106 S.W.2d 287, and Id., 135 Tex. Cr.R. 595, 121 S.W.2d 1003, that a tax collector for a school district was an officer of the government in contemplation of Art. 86, P.C. However, appellant again asserts that because he was also the Tax Assessor and Collector for Donley County at the same time that he is charged with being such collector of the Independent School District, that he could not thus hold two separate and distinct offices at the same time.
While appellant could not legally hold two offices of emolument at the same time as a de jure officer, under Art. 16, Sec. 40, of the State Constitution, Vernon's Ann. St., it is thought that his performance of the duties of school tax collector would constitute him a de facto officer as such school tax collector. A de facto officer is one who holds, and is in possession of, an office under some appearance or color of right or title, although not legally entitled to the same. See vol. 11, Words and Phrases, Perm. Ed., p. 502 et seq.
It is shown by the record that the Hedley Independent School Board had passed into its minutes an order appointing appellant as its tax collector for the year 1938, and that he collected the taxes for such year and continued to do so for the years 1939 and 1940. It is further shown that he was in possession of their tax rolls and actively functioning as such collector; that he received their tax monies, and gave their tax receipts to persons paying such monies; that he made reports to such trustees, together with a payment of the money shown to be due according to such reports.
We think appellant had color of title to such office, as is shown above, and that he was actively functioning as such a de facto officer, and therefore was properly chargeable as such. We have heretofore held in Germany v. State, 109 Tex. Cr.R. 180, 3 S.W.2d 798, 799, that:
It was held in the Germany case that a city secretary, who was also acting as a city tax collector, was such a de facto collector, and could be punished for failure to pay over such collected funds to the city.
Appellant next bases complaints on the proposition that taxes being payable in money, any payment thereof, or any testimony of a payment thereof by checks, would be immaterial and contrary to law, and would be no payment at all. The proposition relative to taxes being payable in money is granted; nevertheless if it could be shown that a check on a bank was given in exchange for a tax receipt, and such check was paid by the bank to the collector, then we think the transaction has eventuated in a payment of the tax in money, and proof showing such would be admissible, the check acting only as a medium by which the money passed.
Appellant also objected to the showing of other transactions wherein it was evidenced that appellant collected state, county and school district taxes, giving receipts therefor in exchange for a check, and which check was by him cashed, such further transactions being handled in the same way and manner as the one under investigation. This cause was submitted to the jury upon the law of circumstantial evidence, and we think that such further transactions were admissible to show system, intent and motive, and a circumstance of guilt. There were several other complaints as to checks handled in the same way by appellant, which the proof shows were cashed by appellant and not paid to the District, the proceeds of which went into appellant's tax account at the bank.
It was shown that these proceeds from such checks, which represented the state, county and school taxes, went into appellant's account as County Tax Collector, at a bank that was properly designated as a county depository, and appellant contended that if this money was converted, then that the depository, having allowed same to go out of its hands, was the loser therefor and not the school district, and therefore the allegation and proof did not correspond.
It is true that appellant paid a personal note of his own owing to the depository bank for $1,500 by means of a personal check of J. W. Adamson, Tax Account, but we think an answer to such a contention is that nowhere is it shown that such bank was the depository of the School District funds and owed such district any duty in ascertaining whether such funds belonged in whole or in part to such district.
Again, there is complaint relative to the introduction of a report sent to the school trustees showing certain collections made. This report was not signed by anyone, but it was evident that same came from appellant's office, and it was accompanied by the personal check of appellant for the amount shown to be due by the report. We think that these facts are sufficiently strong to show that such report came from appellant, and it was evident therefrom that he did not include therein the amounts of money alleged herein to have been converted. It is again of value to show his actions as tax collector of such school district. Such fact is further evidenced by the rubber stamp shown to have been placed on the back of certain cancelled checks in evidence wherein the endorsement was shown as follows:
"For Deposit Only
Tax Assessor and Collector
Donley County
Donley County Tax Collector
and Assessor
Lelia Lake Independent School
District
Hedley Independent School
District
Giles Independent School District
J. W. Adamson, Assessor and
Collector of Taxes
"J. W. Adamson"
Complaint is also made relative to a showing by the State of an issuance of certain tax receipts taken from the back of the tax roll, such receipts not being the regular receipts made out in advance and placed in their regular place in the tax roll. Evidently the regular receipts being still present in the tax roll, their absence meaning their payment and delivery, and the making out of another receipt not included in the tax roll, would not be discovered by the person checking such roll for a period of time, and their presence therein would evidence the non-payment of such tax. These additional receipts were shown to have been made out in appellant's handwriting, and we think were admissible as showing motive and intent, and a circumstance of...
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Anderson v. State
...offered by appellant the proposition that there can be no de facto officer unless there be a de jure office, citing Adamson v. State, 145 Tex.Cr.R. 570, 171 S.W.2d 121; Irwin v. State, Tex.Cr.App., 177 S.W.2d 970, 971; Hill County v. Sheppard, Comptroller, 142 Tex. 358, 178 S.W.2d With the ......