Bennett v. State, 15845.

• Decision Date: 19 April 1933
• Docket Number: No. 15845.,15845.
• Citation: 60 S.W.2d 790
• Parties: BENNETT v. STATE.
• Court: Texas Court of Criminal Appeals

60 S.W.2d 790

BENNETT v. STATE.

No. 15845.

Court of Criminal Appeals of Texas.

April 19, 1933.

Rehearing Denied June 7, 1933.

Commissioners' Decision.

Appeal from District Court, Gregg County; Reuben A. Hall, Judge.

Fred E. Bennett was convicted of embezzlement, and he appeals.

Affirmed.

Harvey P. Shead and J. D. Rayon, both of Longview, for appellant.

Lloyd W. Davidson, State's Atty., of Austin, for the State.

CALHOUN, Judge.

The offense, embezzlement; the punishment, 2 years in the penitentiary.

The evidence showed that the appellant was employed as manager of the Kilgore shop of the Mid-Co Tool & Supply Company. His duties were to look after the business and to look after the bookkeeping end of the business with an assistant. He was also to look after the invoices and see that everything was conducted as it should be with regard to the handling of the business. The evidence further showed that the bank account of the Mid-Co Tool & Supply Company was kept in Oklahoma City and all the money collected at Kilgore was to be sent to Oklahoma City for deposit in a bank there as the said company did not carry an account in any bank in Texas. The appellant was instructed, according to the evidence, to send all money and checks collected at the Kilgore office to the Oklahoma City office. A check came into the hands of the appellant made payable to the Mid-Co Tool & Supply Company for $401 signed by the Milhoan Drilling Company. The evidence further shows that instead of sending said check to the Oklahoma City office the appellant indorsed said check in the name of the Mid-Co Tool & Supply Company by himself as manager and received the money therefor.

The appellant admitted that he received the check and that he cashed same and had never accounted to the company for it, but claimed that the company owed him money and that he applied it to what they owed him.

The first contention of the appellant is to the effect that there was a fatal variance between the allegations in the indictment and the proof adduced by the state in this: The indictment alleged that the appellant embezzled money from the Mid-Co Tool & Supply Company, Incorporated, of Texas, and the proof shows by the exhibition of the charter of the Mid-Co Tool & Supply Company offered in evidence by the state that the concern was the Mid-Co Tool & Supply Company. It is claimed that the use of the words "Incorporated, of Texas," as contained in the indictment, is a part of the corporate name and therefore there was a fatal variance. We regard the objection as not being well taken. The words "Incorporated, of Texas" as appearing in the indictment are not necessarily a part of the corporate name but is merely a description of the corporation, its status, and its location. It will be borne in mind that the name, the Mid-Co Tool & Supply Company is the same in the indictment as in the charter, and the use of the words "Incorporated, of Texas" is descriptive of the corporate name rather than part of the corporate name itself. The indictment set out the offense with which the appellant was charged in plain and intelligible language and is sufficient to support the verdict and judgment, and there was no reversible error in overruling appellant's motion for...