Beard v. State, 21161.

CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Writing for the CourtKrueger
Citation143 S.W.2d 967
PartiesBEARD v. STATE.
Docket NumberNo. 21161.,21161.
Decision Date23 October 1940
143 S.W.2d 967
No. 21161.
Court of Criminal Appeals of Texas.
October 23, 1940.

Page 968

Commissioners' Decision.

Appeal from District Court, Henderson County; Sam Holland, Judge.

Pat Beard was convicted for the misapplication of public funds, and he appeals.


W. D. Justice, H. B. Green, G. W. Allison, and R. H. Moore, all of Athens, for appellant.

Harry Boyd, Co. Atty., of Athens, Tom Pickett, Dist. Atty., of Palestine, and Lloyd W. Davidson, State's Atty., of Austin, for the State.


The offense is misapplication of public funds. The punishment assessed is confinement in the state penitentiary for a term of two years.

Appellant's first complaint is that the trial court erred in declining to sustain his motion to quash the indictment based upon the following grounds:

(a) Because the offense is not charged with sufficient certainty to enable the defendant to plead a conviction or acquittal thereunder in bar of a subsequent prosecution for said offense.

(b) Because it fails to charge with sufficient certainty the particular money he is charged with having misapplied.

(c) Because it is not averred by whom the money was paid to the defendant so that he may be prepared to meet the same.

(d) Because it is not averred what the money was paid to him for, whether for court costs, trust fund, or for some other purpose, etc.

The indictment contains two counts. The first, under which he was convicted, omitting the formal parts thereof, reads as follows: "* * * Pat Beard was then and there the District Clerk of said county, and as such officer, by virtue of said office, there had come into, and was then in his custody and possession, the sum of $50.00 in money, of the value of $50.00, the same being then and there the property of said County, and the said Pat Beard did then and there fraudulently take, misapply and convert the same to his own use."

Article 95 of the Penal Code, 1925, reads as follows: "If any officer of any county, city or town, or any person employed by such officer, shall fraudulently take, misapply, or convert to his own use any money, property or other thing of value belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secrete the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be confined in the penitentiary not less than two nor more than ten years."

It occurs to us that the indictment charges the offense under the statute and is sufficient. It seems to follow the form laid down by Willson in his Texas Criminal Forms, 4th Ed., page 13, Form 25. This form has been approved by this court in the following cases: Crump v. State, 23 Tex.App. 615, 5 S.W. 182; Tankersley v. State, 105 Tex.Cr.R. 220, 288 S.W. 221; Steiner v. State, 33 Tex.Cr.R. 291, 26 S.W. 214. We therefore overrule the appellant's contention.

Page 969

Appellant next complains of the action of the trial court in overruling his application for a continuance based on the absence of certain witnesses therein named, who resided at or near Red Schute in the State of Louisiana, and also because of the absence of Tom Beard and his wife, Earnestine Beard, who resided in Smith County, Texas, by whom he claims he could prove, and would prove if present in court, that the appellant was not at Athens in Henderson County on the day of the commission of the alleged offense, but that he was in the State of Louisiana. The indictment was returned against the appellant at the September term, A. D., 1939, charging him with having committed the offense in the County of Henderson, State of Texas, on or about the 3rd day of January, 1939. Appellant knew from the charge in the indictment that the State would expect to prove that he committed the offense on or about the 3rd day of January, A. D., 1939, but he made no effort to take the depositions of the witnesses in the State of Louisiana to prove by them the facts which he claims he could prove. Consequently, appellant failed to exercise that degree of diligence required of him by law. See Qualls v. State, 131...

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5 cases
  • Kirkpatrick v. State, 48630
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • November 6, 1974
    ...motion to quash the same. We find the indictment in the same form which this Court approved in Beard v. State, 140 Tex.Cr.R. 127, 143 S.W.2d 967. See also Willson's Criminal Forms, Seventh Edition, Sec. 62, p. Ground of error seven urges that there is a fatal variance between the indictment......
  • Floyd v. State, 28388
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • October 31, 1956
    ...reference to the funds of a bank are not convertible terms.' Such rule has no application here. In Beard v. State, 140 Tex.Cr.R. 127, 143 S.W.2d 967, 968, which was a prosecution under the same statute as the case at bar, the indictment charged that Beard did Page 528 "fraudulently take, mi......
  • Scanlin v. State, 29056
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • June 26, 1957
    ...relies relate to the offenses of murder and robbery and do not involve the crime of embezzlement. In Beard v. State, 140 Tex.Cr.R. 127, 143 S.W.2d 967, where the accused was charged with the misapplication of public funds, this Court held proper proof that the accused had owned three automo......
  • Hendrick v. State, 01-86-0297-CR
    • United States
    • Court of Appeals of Texas
    • May 21, 1987 does not state which of his acts was unlawful. Similar attacks on indictments were rejected in Beard v. State, 140 Tex.Cr.R. 127, 143 S.W.2d 967 (1940), and Romine v. State, 722 S.W.2d 494 (Tex.App.--Houston [14th Dist.] 1986, pet pending). Moreover, Adams v. State, 707 S.W.2d 900 (Tex.C......
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