Ainsworth v. State

• Decision Date: 13 October 1926
• Docket Number: (No. 10325.)
• Citation: 287 S.W. 250
• Parties: AINSWORTH v. STATE.
• Court: Texas Court of Criminal Appeals

287 S.W. 250

AINSWORTH v. STATE.

(No. 10325.)

Court of Criminal Appeals of Texas.

October 13, 1926.

Commissioners' Decision.

Appeal from District Court, Taylor County; W. R. Ely, Judge.

H. G. Ainsworth was convicted of embezzlement, and he appeals. Reversed and remanded.

Ben L. Cox, of Abilene, for appellant.

Sam D. Stinson, State's Atty., of Austin, and Robt. M. Lyles, Asst. State's Atty., of Groesbeck, for the State.

BAKER, J.

The appellant was convicted in the district court of Taylor county for the offense of embezzlement, and his punishment assessed at two years in the penitentiary.

The record discloses that the appellant was charged with embezzling about $150 in money, the property of the Ralph Paint & Paper Company, on or about the 15th day of March, 1925. The record further discloses that the appellant was conducting a collection agency in the city of Abilene, and that the above company placed in his hands for collection certain accounts, including one against A. J. Freeman; that the appellant collected the Freeman account, but failed to remit the proceeds thereof and used same in the transaction of his business. The appellant defended upon the ground that it was his custom, when he made partial collection of an account, to withhold settlement with the owner thereof until all of the account had been collected; that the collection from Freeman was in installments, and that about that time he had serious sickness in his family and had to leave to go to the hospital, which necessitated his absence from the city of Abilene for many months; that he had never refused to pay the account and had no intention of defrauding the prosecuting witnesses, but had not seen any member of said company until after he was arrested and brought back from Oklahoma. This is a sufficient statement for the discussion in this opinion.

The record discloses 7 bills of exception. Bill No. 1 complains of the refusal of the court to instruct a verdict of acquittal on the ground that no part of said money was ever in the possession or control of the Ralph Paint & Paper Company, and therefore the act alleged would not constitute embezzlement. We are of the opinion that there is no merit in this contention.

Bill No. 2 is in question and answer form, and, under article 760 of the C. C. P. and the decisions of this court, we are unauthorized to consider same. Robbins v. State, 100 Tex. Cr. R. 592, 272 S. W. 175; Williams v. State, 102 Tex. Cr. R. 648, 279 S. W. 466. Many other authorities could be cited, if necessary.

In bill No. 3 complaint is made to the action of the court in permitting the state to introduce in evidence a check for the sum of $129.19, the objection being that same was not indorsed and was immaterial, and that the appellant was charged with embezzlement in the sum of $150, an amount larger than said check. This bill, as presented, shows no error.

Bill of exception No. 4 complains of the action of the court in permitting the state to show that appellant's account was overdrawn at the bank, upon the ground that it was immaterial and irrelevant. This bill, as presented, shows no error, and the objection would go more to the weight than to the admissibility of the testimony.

Complaint is made in bill No. 6 to the action of the court in permitting the state to show that the prosecuting witness, Ralph, was named S. L. Ralph, Jr., the objection being that the indictment...