Cage v. State

• Decision Date: 28 May 1958
• Docket Number: No. 29751,29751
• Citation: 167 Tex.Crim. 355,320 S.W.2d 364
• Parties: Ben Jack GAGE, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 364

320 S.W.2d 364

167 Tex.Crim. 355

Ben Jack GAGE, Appellant, v. STATE of Texas, Appellee.

No. 29751.

Court of Criminal Appeals of Texas.

May 28, 1958.

Rehearing Denied Jan. 28, 1959.

Ivan Irwin, Pete White, M. R. Irion, Dallas, and King Haynie, Houston, for appellant.

Henry Wade, Dist. Atty., James K. Allen, Wm. F. Alexander and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for embezzlement of money of the value of $50 or over; the punishment, 10 years confinement in the penitentiary.

The State's evidence shows that appellant was Vice-President of the ICT Corporation, a corporation chartered under the laws of The State of Texas, with its principal place of business in the City of Dallas, Dallas County, Texas. The original corporate name of the corporation was ICT Discount Corporation which was later, by charter amendment, changed to ICT Corporation. ICT Corporation together with ICT Life Insurance Company and ICT Insurance Company of Texas was managed by Jack Cage and Co., of which appellant was president and principal stockholder.

Francis J. Knoll, Secretary of the ICT Corporation, upon being called as a witness by the State, testified that on June 22, 1955, a draft in the amount of $100,000 addressed to appellant and payable to Missouri Union Corporation was received for payment at the Mercantile National Bank in Dallas; that on such date appellant called by telephone and advised him of the draft and told him to pay the same from funds of ICT Corporation; and pursuant to appellant's instructions he paid the draft by issuing and delivering an ICT Corporation check in the amount of $100,000 to the Mercantile National Bank on the account of the corporation in that bank which check was signed by him as secretary and his assistant as co-signer. That by virtue of a bank resolution of file the officers of ICT Corporation were authorized to sign checks on the corporation and by virtue of their offices in the corporation both he and the appellant had care, custody, possession and control of the money belonging to the corporation in the Mercantile National Bank in Dallas. The witness further testified that after the $100,000 disbursement, the item was carried on the books of ICT Corporation as an account receivable from Missouri Union Corporation; that the item was not considered as a loan and no payment was received of the account up to the time he left the company in February, 1956.

Edmond B. Welshans, President of Missouri Union Corporation, called as a witness by the State testified that upon receipt of the $100,000 from the draft drawn on appellant, Missouri Union Corporation issued 20,000 shares of stock to three nominees of appellant; that upon receipt of the money and issuance of the stock the transaction was completed and Missouri Union Corporation did not owe ICT Corporation as a result of the transaction. He further testified that shortly after the $100,000 was deposited to the account of Missouri Union Corporation, in a bank in Kansas City, Missouri, the appellant, who was chairman of the Board of Missouri Union Corporation, withdrew $96,000 from the account by signing a check on the corporation; that when the transaction was discovered and called to his attention appellant advised that the withdrawal had been made in the name of the Corporation as an investment; that later the sum was secured by a note in the amount of $100,000 executed by the Oxford Corporation and a collateral pledge agreement executed by appellant whereby the 20,000 shares of stock which had been issued by Missouri Union Corporation to appellant's nominees were pledged as collateral security for payment of the note and that the 20,000 shares of stock were thereafter acquired by Missouri Union Corporation in cancellation of the balance due on the note.

Paul C. Sparks, a director of the ICT Corporation and member of the investment committee, testified that he had no knowledge of the $100,000 disbursement of ICT funds in payment of the draft drawn on the appellant and that it was made without his permission and consent.

Appellant did not testify but through his interrogation of the State's witnesses and exhibits introduced in evidence sought to show that the purpose of the $100,000 disbursement was to loan the money to Missouri Union Corporation to form an insurance company in Missouri which would enter into a re-insurance treaty with the ICT Insurance Company to take over the company's business in Missouri. It was shown by appellant that in the transactions between the ICT group in Texas and the Missouri Union Corporation the sum of $420,000 was loaned by ICT Corporation to Missouri Union Corporation; however, the evidence shows that the loan was approved by the directors of ICT Corporation, a note and collateral security was given therefor and the loan was paid without reference to the $100,000 disbursement. Appellant also sought to show that the $100,000 item carried on the books of the ICT Corporation as an account receivable from Missouri Union Corporation was paid and settled on July 1, 1956, under the terms of an exchange agreement between ICT Corporation and Jack Cage and Company and evidence was offered by the State which showed that ICT Corporation lost $1,044,984.35 by virtue of the contract of exchange.

Appellant also attempted to show that the $100,000 transaction with Missouri Union Corporation was for the benefit of ICT Corporation and all the corporations in the ICT group and that he had no intent to defraud ICT Corporation in the transaction.

We shall discuss the contentions of appellant in the order presented in his brief and oral argument.

Appellant first insists that the Court erred in permitting the State to introduce in evidence 16 checks issued by ICT Corporation to J. B. Saunders, a member of the Insurance Commission of Texas, because they were not shown to be other embezzlements, or offenses of which appellant was guilty, or transactions connected with, or relevant to, the offense charged.

The record reflects that the checks were admitted in evidence by the Court on the issue of appellant's intent after the witness, Knoll, had testified that they were issued to Saunders upon instructions of appellant for, according to the appellant, legal services rendered to ICT Corporation. Knoll testified that while Saunders could have rendered legal services to the corporation he knew of none rendered by him.

The general rule which prohibits evidence of extraneous offenses has certain well recognized exceptions. Under the exceptions to the rule, evidence of extraneous offenses or transactions is admissible where it shows system, intent, knowledge, identity, etc. Crutchfield v. State, 144 Tex.Cr.R. 291, 162 S.W.2d 699; Lawson v. State, 148 Tex.Cr.R. 140, 185 S.W.2d 439 and Campbell v. State, Tex.Cr.App., 294 S.W.2d 125. Under such exceptions to the rule evidence of similar transactions becomes admissible even though it does not show the commission of other offenses. Stanford v. State, 103 Tex.Cr.R. 182, 280 S.W. 798 and Rose v. State, 148 Tex.Cr.R. 82, 184 S.W.2d 617.

The issuance of the checks to Saunders under appellant's directions were similar transactions to that of the issuance of the $100,000 check in question in that company funds were being disbursed at appellant's direction. If Saunders was performing no legal services to the corporation the company was being defrauded as a result of the issuance of the checks under appellant's directions. Under the record the Court did not err in admitting the checks in evidence on the issue of appellant's intent in the $100,000 transaction in question.

Appellant next insists that the Court erred in requiring the witness J. Byron Saunders to assert in the presence of the jury his privilege of immunity from testifying. Appellant's contention is presented by Formal Bill of Exception No. 3 which, as originally presented to the Court, certified that the witness Saunders prior to taking the witness stand advised State's Counsel that he intended to claim his privilege, that counsel for appellant so advised the Court and requested that the matter be determined out of the hearing and presence of the jury but the Court ruled the matters were admissible before the jury. The Bill of Exception is approved by the Court with the qualification that 'Any matter of act or recitation of testimony set forth in the Bill which are at variance from the facts shown in the official record in this case as prepared by the court clerk and the court reporter are not certified by me as true, but are certified by me as being contention of the defendant.' A reference to the Statement of facts shows that the only reason given the Court by appellant for his request that the witness, Saunders, be examined outside the presence and hearing of the jury was 'He's an attorney, member of the Bar, lawyer just like you are.' The fact that the witness Saunders was an attorney constituted no legal ground or reason why he should not be examined in the presence and hearing of the jury. Under the record the bill of exception, as qualified, does not reflect error.

The Court, in his charge, limited the jury's consideration of the evidence introduced concerning the checks issued to J. B. Saunders by instructing the jury that such evidence was admitted to aid them in determining the intent of appellant and for no other purpose and that they could not consider such evidence in determining his guilt or innocence but only determining his intent and design.

Appellant insists that the charge as given by the Court was erroneous for various reasons. He first contends that it was erroneous because of the use of the term 'and/or' in the instruction. That the instruction was not supported by the evidence and was an unwarranted comment by the Court because it referred to checks issued by ICT Insurance Company...