Busby v. State

Citation103 S.W. 638
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas
Decision Date06 March 1907
PartiesBUSBY v. STATE.

Appeal from District Court, Houston County; Benjamin H. Gardner, Judge.

A. S. Busby was convicted of embezzlement, and he appeals. Reversed and remanded.

Johnson & Edwards, H. N. Atkinson, and Adams & Adams, for appellant. Howard Martin, Asst. Atty. Gen., for the State.


Appellant was convicted of misapplication and conversion of public money, and his punishment fixed at confinement in the penitentiary for a term of three years. Hence this appeal.

In order to present the legal questions which appellant makes, it becomes necessary to state the case. The record is lengthy, and contains much that is calculated to mislead and confuse. Without going into elaborate details, we will summarize what is considered to be the essential features of the case, as made by the state, and then the defenses set up by appellant.

Appellant became what is termed the assistant financial agent of the Rusk penitentiary in 1899. In effect he was subordinate and clerk of W. M. C. Hill, the financial agent of penitentiaries, appointed by Governor Sayers. Appellant qualified and entered on his duties in February of said year. His duties as such agent were to manage the financial affairs of the Rusk penitentiary, to buy supplies for the same, to sell products manufactured at said penitentiary, to pay out and receive moneys on said accounts, and to keep a correct account thereof, and to furnish monthly itemized statements of receipts and disbursements to the financial agent. His duty was to keep an account of every item bought and sold, with the price paid for the same, or the price for which the same was sold; and to keep the same correctly, and to keep the moneys accruing from the business of said penitentiary, to pay over to the financial agent the excess of receipts over expenditures as might be required. The indictment charged him as such agent with the embezzlement of funds received in the amount of $7,500, which he had not accounted for. In the evidence supporting this allegation, the state introduced three separate features, showing in different modes receipts by appellant, and unaccounted for: (1) The state showed distinct items, or charges of separate amounts received by him. These items included drafts and vouchers collected, beginning some time in August, and aggregating about $6,000. This includes the difference in the International & Great Northern Railroad account, between the moneys collected and moneys reported, of $854.76, which appears to have been collected before the 17th of June, 1901; and includes the Texas & Pacific Railroad account, which appears to have been collected prior to said lastnamed date; and includes the difference in the Cotton Belt's account, collected and reported, which was $856.41. (2) The state showed by the bookkeepers appointed to audit said account that appellant, during his term of office, was short some $26,000. In this connection it was also shown by these experts that appellant claimed to have some $13,000, which he alleged was his private money, and belonged to him individually; and, allowing his claim, they agreed that he was short some $12,000. They further stated there was some $3,000 that they were not entirely satisfied about as charged against appellant, and, allowing this, he was indebted to the state $9,000, for which he made no showing. (3) It was also shown that, subsequent to appellant's term of office, suit had been brought against his principal, W. M. C. Hill, on account of his default. That Hill made appellant a party defendant, and in case judgment was rendered against him (Hill) he asked judgment against appellant, and the sureties on the bond, which appellant had executed to him for the safe conduct of his office. An auditor was appointed by the court trying the case, and he reported a deficit of some $6,000. This was subsequently compromised, and a judgment rendered for $4,200 against said Hill, and also against this appellant and his sureties.

Against this demand of the state, appellant introduced some evidence challenging some of the state's separate items; it being proved by him that it was the custom between the bank and himself, when he gave a check or draft to the bank to be collected, that it was not to be charged as moneys received by the bank on his account, until the bank reported the collection thereof to him, and then it was made a charge against him, and that as to these particular items the bank made no report to him up to the time of his going out of office, and consequently they were not a charge against him. However, it was shown as to all these items, to wit, Hines Lumber Company, $520.60, Dallas Waterworks drafts, $327, and the other Dallas Waterworks item, $____, that, while these were not reported to appellant at the time as collected, they were in fact collected, and were a proper charge against him. Appellant also showed that he was not required to keep the money at any particular bank, and he was not required to pay it over at any particular time. That he kept said money at three different banks, to wit, at the Rusk National Bank, and the Gatesville Bank, and Center Bank. That, in connection with his account for the penitentiary, he kept his private account of moneys belonging to him, and drew drafts promiscuously for the penitentiary, and on account of his individual undertakings, and on a proper accounting he was not indebted to the state in any amount. That really the state was indebted to him. In this connection he introduced in evidence a statement of accounts between him and the expert bookkeepers appointed to audit his books and accounts. This statement showed that his private moneys, on account of his private business, more than offset the account of the state against him; in other words, the state had received the benefit of some $26,370 private funds. That this account was made out by Walker, who succeeded him, and the suggestion is that it was agreed to as a correct account.

The state answered this by showing from Walker that he knew nothing of the items claimed as offsets by appellant; that appellant made the statement to him, and the amounts were put down; and that he added these up, and it amounted to the offsets claimed by appellant as against the state's account of defalcation. On cross-examination of appellant as to these items, the following appears: "Q. According to your contention, these items that you listed and gave to Walker, and figured up $26,000, was all your money? A. I did not say so. Q. From the books that you have gone through, how much money does the state of Texas owe you? Is it about $13,000? A. No, sir; it would be $25,362.96, or this other amount of $26,846.18. The first amount is the amount claimed as my shortage by the expert accountants. Q. So, when you left the state of Texas, and went to Shreveport, the state of Texas really owed you a large sum of money? A. I did not know anything about it. Q. Did you not keep your books so you could tell whether the state owed you or you owed the state? A. No, sir; I could not tell anything about it. I am not a clerical man. * * * Q. Why would you use your private funds for the state? A. Every time we would make out a report I would be guided entirely as to the amount that report called for as to how I stood. Q. You intended to be honest with the state of Texas, did you? A. Yes, I did. Q. You knew when you turned over the office you would have to settle according to the books in the office? A. Yes, sir. Q. Why did you say that your books and reports were correct, unless you knew that was so? A. I conducted the affairs of the office as well as I possibly knew how. I never suspected there was anything wrong at the office until these things came up. Q. Why did you not keep the state's money and your own money separately in the bank? A. I never apprehended any trouble from any source of that kind. I thought the books of the penitentiary would show what I was due the penitentiary. Q. Is that the way you do business when you handle two men's money, to mix them up in the same account? A. That was not handling two men's money. I did not have any, it seems. Q. Whose was this $26,000? A. I could not tell you to save my life how that was. Q. You could not tell how much money you had? A. I am going to examine these two bank accounts, and I am going to try to see if I can dissect these, and tell which was which, and all about it. I have mighty near done it as it is, but there is more in that Center account of borrowed money than has been represented." Further, appellant, when asked "how he came to have separate moneys or funds to put in bank," accounted for the same in this wise:

                That he realized from the sale of his
                  home in Gatesville ................... $ 1,000 00
                From the sale of his drug business
                  at Gatesville ........................   1,100 00
                That he borrowed from the Gatesville
                  Bank on his note .....................     688 20
                Borrowed from a convict, named
                  Guyton ...............................   1,100 00
                Sold some pig iron, and made a
                  profit of ............................     800 00
                Borrowed from the San Augustine
                  Bank .................................   1,800 00
                Borrowed from the Center Bank ..........   1,000 00
                The brick company owed him .............   2,200 00
                Estimated collections from drug accounts
                  at Gatesville ........................   1,500 00
                                                         $11,188 20

It was shown, in this connection, that appellant entered into the brick business in Rusk, and he and Sanders and some others owned a plant there and manufactured brick. Appellant is shown in one place to have claimed that the brick concern owed him $2,200. According to another statement, the brick concern owed him $5,700. According to his sworn statement, the brick concern,...

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