Campbell v. State, 28208

Citation163 Tex.Crim. 545,294 S.W.2d 125
Decision Date09 May 1956
Docket NumberNo. 28208,28208
PartiesAlta CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

McCarthy, Rose & Haynes, by George S. McCarthy, Amarillo, for appellant.

Gib K. Howard, Dist. Atty., Wayne Bagley, Asst. Dist. Atty., Amarillo, Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

Appellant was convicted under Art. 95, V.A.P.C., of the offense of misapplication of county funds and assessed punishment at two years' confinement in the penitentiary.

The conviction is under the Sixteenth Count of the indictment, which charged that on or about the 31st day of August, 1953, the appellant did fraudulently take, misapply and convert to her own use and benefit, $100 in lawful current money of the United States, being then and there the property of Potter County, Texas.

The state's evidence shows that the appellant was employed as a Deputy County Clerk of Potter County from September 1, 1950, until January 1, 1955, and during such time was in charge of the Court Department of the office, where other deputies worked under her supervision.

It is shown that through this department all fines and costs in criminal cases and fees in civil and probate cases were collected. The records in the office showing the collection of fees in the department consisted of a receipt book, a fee book, cash book, certain envelopes, bank deposit slips, and monthly reports to the County Auditor.

According to the testimony, it appears that when a collection was made in a case, a receipt was issued therefor from a printed receipt book in which the duplicate receipt was retained. The amount collected was also entered in the cash book and fee book. At the end of each day's business the amount collected during the day was placed in an envelope and on the outside of the envelope was written the date, the number of each receipt issued and the amount for which each receipt was written, and the total amount of all receipts listed. The envelope was then delivered to the bookkeeper in the Clerk's Office and would be returned to the Court Department on the following morning and each succeeding day until the bookkeeper made a deposit in the bank of the funds contained in the envelopes, after which time the envelopes were not returned to the Court Department but were kept stored in various places in the Clerk's Office.

It is further shown that the records of the County Clerk's Office for the years 1947 through 1954 were audited by Harvey Todd, a certified public accountant, under a contract of employment made with the Commissioners Court of Potter County in December, 1954.

Auditor Todd testified that from his examination of the records he found evidence of erasures and alterations of the receipt books, fee books, and envelopes in the Court Department and discovered the first evidence of a shortage existing in the department in August or September, 1951. He further testified that in checking the total amount of the bank deposits against the total amounts of the envelopes for which the deposit was made it was ascertained, in many instances, that the bank deposit was for an amount less than the total on the envelopes. His testimony reflects that a shortage existed in the department for each of the years covered by his audit.

The state offered in evidence numerous Exhibits, including duplicate receipts issued in the Department for fines and costs, which indicated erasures and alterations of the words and figures in the amount for which the receipts were originally written.

Among the Exhibits offered by the state was a duplicate receipt No. 6094, dated August 31, 1953, for fine and costs in a certain Case No. 16984, styled The State of Texas v. Arnold Althaus, for the amount of $127.55. The amount for which the receipt was issued was written in words and figures as follows: '127.55 One hundred twenty seven & 55/100,' and was signed under the printed name of the Clerk by 'AC Deputy.' The receipt further shows total fine and costs in the amount of $227.55 and a jail credit of $100.

As a witness for the state, Althaus testified that on August 31, 1953, he paid to the Clerk's Office a total amount of fine and costs in the sum of $227.55, and that he was only confined in jail from a noon on Sunday until the following morning. The witness produced the original receipt No. 6094 issued to him, which was for the sum of $227.55 and did not contain a jail credit of $100.

The evidence further shows that the receipt issued to Althaus was listed on the envelope dated August 31, 1953, and the amount was shown on the envelope as $227.55, and that the bank deposit of the receipts of the department listed on a series of envelopes, including the envelope in question, was $100 less than the totals of the envelopes from which the receipts were deposited.

The testimony further shows that on the morning of April 5, 1955, which was two days before her arrest, the appellant was interrogated in the Sheriff's Office of Potter County, in the presence of Sheriff Paul Gaither, District Attorney Gib Howard, County Auditor Boone Mooreland, and Auditor Harvey Todd, in regard to the shortage in the Clerk's Office.

Sheriff Gaither testified that in the conversation the appellant, upon being shown certain receipt books which had been altered or erased, stated that they were in her handwriting; that she had done the alterations and that they were in her handwriting; and then stated she had a list upstairs or at her home 'that might help;' that she left and returned saying that the paper was at her home and then left again and returned with three sheets of paper upon which were listed many dates, numbers and amounts. The three sheets of paper delivered by the appellant and introduced in evidence as State's Exhibit No. 182 include the following notation: '8-31-53 6094-16984 227.55 200.00 100.00.'

Auditor Mooreland testified that in the interview the appellant admitted that she had changed some of the receipts which appeared to have been altered and further testified: 'As best I remember, she said she had a list of the alterations 'I made, as to the alterations I have made." before she left and returned with the papers introduced as State's Exhibit No. 182.

District Attorney Gib Howard testified that after the interview with the appellant on the morning of April 5 the appellant came to his office that afternoon, at which time they had the following conversation:

'Then she asked me, 'well, Mr. Howard, couldn't you tell the grand jury that this list I brought in is an IOU, and that some way I can pay the money back?' and I again informed her we would just have to present the facts to the grand jury and let them be developed, and that she should get out of her mind the idea of ending her life; and then I asked her if she wouldn't like to talk to her minister, and she said yes, and I asked who her minister was and she said Dr. Carl Bates, of the First Baptist Church. I then asked if she was the only person involved in the theft of the money down in the county clerk's office, and she stated that she was the only one; that she didn't want anyone else to get into trouble, that she was the only one involved in it.'

Appellant did not testify, but offered character witnesses who testified that her reputation for truth and veracity and for being a peaceable and law-abiding citizen was good.

Dr. Carl Bates, Pastor of the First Baptist Church of Amarillo, testified that he had a conversation with the appellant on the afternoon of April 5, 1955, and in the conversation the appellant stated: 'I am not responsible for what I am being accused of, I am not involved in the thing,' and that she was not responsible for the shortages.

By Bill of Exception No. 1 appellant complains of the action of the court in overruling her motion to quash the indictment on the ground that it charged the commission of nineteen (19) separate and distinct...

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    • July 2, 1986 a single indictment, more than one nonproperty offense arising out of separate transactions. See Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125, 128 (1956) ("An indictment charging separate and distinct offenses in different counts is subject to the objection of misjoinder...."). S......
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    ...(1922) (compare original opinion, 242 S.W. at 1041-1043, with opinion on rehearing, at 1044 ff); Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125, 126, 128-129 (1956); see also Nees v. State, 402 S.W.2d 186 (Tex.Cr.App.1966), Nees v. Culbertson, 406 F.2d 621 (C.A. 5 1969), cert. denied ......
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