Cameron v. State, 39056

• Decision Date: 23 February 1966
• Docket Number: No. 39056,39056
• Citation: 401 S.W.2d 809
• Court: Texas Court of Criminal Appeals
• Parties: Montgomery Fly CAMERON, Appellant, v. The STATE of Texas, Appellee.

Page 809

401 S.W.2d 809

Montgomery Fly CAMERON, Appellant, v. The STATE of Texas, Appellee.

No. 39056.

Court of Criminal Appeals of Texas.

Feb. 23, 1966.

Rehearing Denied April 27, 1966.

Luther E. Jones, Jr., Corpus Christi, Cofer, Cofer & Hearne, by Hume Cofer, Austin, for appellant.

James E. Barlow, Dist. Atty., San Antonio, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is for felony theft; the punishment, two years.

Prosecution was upon an indictment for ordinary theft which charged that on or about the 24th day of September, 1964, the appellant did unlawfully and fraudulently take money of the United States of America of over the value of $50 from one Charles J. Hedlund.

It was shown by the state's evidence that in December, 1963, the appellant received as a gift from a woman in San Antonio two Cabochon emerald cuff links which had been specially cut and mounted by Julius Cohen, a jeweler in New York City. The two cuff links weighed 58.31 carats and had an appraised value of $3,400. It appears that the cuff links were not to appellant's liking and he contacted the jeweler, Cohen, relative to trading them for some other cuff links. Early in 1964, Cohen went to San Antonio and took the two cuff links back to New York with him. A number of letters were then written by appellant to Cohen and on March 30 appellant requested that the cuff links be returned to him. Cohen testified that they were immediately sent to appellant by registered mail and that later, in April, 1964, a trade was made whereby appellant would receive some sapphire cuff links, and the two emerald cuff links were returned to him (Cohen) in New York. Cohen testified that he had possession of the two emerald cuff links from the time he received them in April, 1964, until he delivered them in Houston to Sgt. Brookbank, of the Alamo Heights police department, in January, 1965. The two emerald cuff links were positively identified by Cohen and introduced in evidence as state's exhibit #1.

It was further shown that appellant had a jewelry floater policy with the Aetna Casualty and Surety Company of Hartford, Connecticut, and that on January 10, 1964, the same was amended by adding Item #14, described as one pair of gold Cabochon emerald cuff links weighing 58.31 carats and valued at $3,400.

On July 27, 1964, appellant called the witness Travis Bailey, who was the representative of the Aetna Casualty and Surety Company in San Antonio, and reported that the two emerald cuff links had been lost. Bailey went to appellant's office, and appellant again stated that the cuff links had been lost, or had disappeared. At such time appellant requested that the loss not be referred to the police as he did not want any publicity in the matter.

Appellant's claim was thereupon referred to Charles Heldlund, a claims representative in San Antonio for the company. After investigation and a conference with appellant in which appellant stated to the adjuster that the cuff links were lost, Hedlund prepared a statement of claim which was referred to as a proof of loss and delivered it to appellant's office with a draft dated September 22, 1964, signed by the witness as representative of the Aetna Casualty and Surety Company, payable to appellant in the sum of $3,400. On September 23, 1964, appellant signed the proof of loss and on September 24, 1964, the draft was deposited to appellant's personal and separate account in the National Bank of Commerce in San Antonio.

Testifying as a witness in his own behalf, appellant swore that he did not return the two emerald cuff links to Cohen in April, 1964, and that he (appellant) had possession of them in San Antonio when they were discovered missing some time during the week of July 20, 1964. He further swore that the cuff links introduced in evidence as state's exhibit #1 were not the two missing cuff links.

The court submitted the issue of appellant's guilt to the jury upon the state's theory of theft by false pretext and authorized the jury to convict appellant if they found from the evidence beyond a reasonable doubt that he obtained possession of the money from Charles J. Hedlund by fraudulently representing to him that he owned a set of cuff links which were lost, stolen, or misplaced.

The charge given by the court was substantially the same as that given in King v. State, Tex.Cr.App., 213 S.W.2d 541, which is set out 5 Branch's Ann.P.C.2d 130--132, Sec. 2683.1.

We do not agree that the instruction given by the court omitted as an essential element of the offense the actual appropriation of the money. The charge, taken as a whole, included such element in the court's definition of the offense and application to the facts and fairly submitted the issue of appellant's guilt to the jury.

Nor do we agree that the court erred in refusing to give a charge on circumstantial evidence. The testimony in the case is tantamount to direct evidence that appellant obtained the money from the injured party, Hedlund. It is the rule that where there is direct evidence that the accused took the property and his fraudulent intent is to be inferred from the main fact proven, no necessity exists for a charge on circumstantial evidence. See: Green v. State, 144 Tex.Cr.R. 221, 161 S.W.2d 1074, and cases there cited.

It is insisted that there was a fatal variance between the allegation in the indictment that the taking of the money was from the possession of Charles J. Hedlund and the proof because the evidence showed that Hedlund did not have the actual control, care, and management of the money at the time of the taking. Metzger v. State, 168 Tex.Cr.R. 268, 325 S.W.2d 396, is cited and relied upon in support of such contention.

The record does not support appellant's contention.

The witness Hedlund, in whom possession of the money was alleged in the indictment, testified that he was the claims representative for Aetna Casualty and Surety Company and had held such position for twelve years. He explained in detail how reserve funds were set up in his office to pay claims, and swore that he was authorized to pay the claim. As a representative of the company he was shown to be a special owner of the money, and the state was authorized to allege ownership in him. Art. 402, Vernon's Ann.C.C.P.; Kitchen v. State, 124 Tex.Cr.R. 358, 62 S.W.2d 144; Bradford v. State, 170 Tex.Cr.R. 530, 342 S.W.2d 319.

The fact the draft issued to appellant was not paid until it was received by the drawee bank in Hartford, Connecticut, five days after being deposited in San Antonio does not support appellant's contention of variance. The record is clear that app...