Ciulla v. State

• Decision Date: 12 March 1930
• Docket Number: No. 12946.,12946.
• Citation: 28 S.W.2d 541
• Parties: CIULLA v. STATE.
• Court: Texas Court of Criminal Appeals

28 S.W.2d 541

CIULLA v. STATE.

No. 12946.

Court of Criminal Appeals of Texas.

March 12, 1930.

Rehearing Denied May 21, 1930.

Application for Leave to File Second Motion for Rehearing Denied June 11, 1930.

Commissioners' Decision.

Appeal from Criminal District Court, No. 2; Harris County; Langston G. King, Judge.

Jack Ciulla was convicted of embezzlement, and he appeals.

Affirmed.

J. Meek Hawkins, Thos. C. Turnley, and E. H. Cavin, all of Houston, for appellant.

O'Brien Stevens, Cr. Dist. Atty., and E. T. Branch, Asst. Cr. Atty., both of Houston, and A. A. Dawson, State's Atty., of Austin, for the State.

CHRISTIAN, J.

The offense is embezzlement, a felony; the punishment, confinement in the penitentiary for five years.

Appellant is an attorney at law. Letha Scott, a negress, who had shot her husband and was under complaint charging her with assault with intent to murder, employed appellant to defend her. It appears from the state's testimony that she had not known appellant until he called at the jail and requested her to employ him. According to her testimony, a fee of $250 for the examining trial was agreed upon. After the examining trial, the fee was fixed in the additional sum of $500, making a total of $750. Letha Scott's brothers gave appellant a note for $500, which, according to the testimony of the state, was not a retainer fee, but, together with the $250 paid by Letha Scott, represented the entire fee appellant was to receive for representing Letha Scott. Letha Scott's husband died. The grand jury investigated her case and failed to return a bill. According to the state's testimony, Letha Scott found that her husband had insurance policies in the sum of $539. She offered these policies to appellant as security for the $500 note executed by her brothers. It appears that she had authority to assign the policies. The version of the state's witnesses was further to the effect that appellant prepared an assignment of these policies to him and took Letha Scott to the office of John M. Mathis, Jr., a notary. The notary explained the assignment to her, advising her that it provided that appellant should receive the entire amount of the proceeds of the policies. Whereupon she advised Mr. Mathis that she intended to give the policies as security for the $500. The notary inserted in the assignment a provision to the effect that any amount collected by appellant in excess of $500 was to be paid to Letha Scott. It appears from the state's testimony that appellant, although present, made no protest. He and Letha Scott left the office. Later, appellant destroyed the assignment. Another assignment was executed. Appellant afterwards discovered that a policy for $1,000, which deceased had left, had been turned over to Daniels, the undertaker who had buried deceased. Appellant induced Letha Scott to execute an assignment to the $1,000 policy, taking her to another notary, although Mr. Mathis had an office next door. Letha Scott testified that appellant told her that she was executing papers proving the death of her husband, in order that he might collect for her the proceeds of the insurance policies. She said that she did not know that she was executing an assignment to the insurance policies that would enable appellant to collect the proceeds and retain the entire amount. She and her brothers testified that the total fee due appellant was $750. Appellant went to Daniels, the injured party, and induced him to surrender the $1,000 policy Letha Scott had left with him as security for the payment of her husband's burial bill. Daniels testified that he delivered the policy to appellant upon condition that appellant would collect the amount due thereon and pay him out of said amount the sum of $273.50, due him as an undertaker for burying deceased. Appellant collected the amount due under the policies and applied the full amount to his own use and benefit. Not a dollar was turned over to Letha Scott. Although Daniels called upon appellant to comply with his agreement to deliver to him the $273.50 belonging to him, appellant refused. The total amount collected by appellant on the insurance policies and retained by him aggregated about $1,643.75.

Testifying in his own behalf, appellant defended on the ground that it was agreed between him and Letha Scott at the time the assignment was executed that the proceeds of the policies were to be retained by appellant, and that he should cancel the $500 note executed by her brothers, which he did. He said it was agreed that the $500 note would represent a retainer fee. He denied that he entered into an agreement with Daniels, the injured party, at the time the $1,000 policy was delivered to him by Daniels, to collect the amount due Daniels and deliver it to him in payment of the funeral bill.

There was testimony tending to show that the $500 note was not canceled until appellant was under investigation for embezzlement. Moreover, there was testimony tending to show that appellant wrote the word "retainer" on the $500 note after Letha Scott's brothers had executed and delivered the note to him.

It is earnestly insisted that the evidence is insufficient, it being urged that Daniels had no interest in the insurance policy he delivered to appellant, and that the testimony failed to show that appellant was the agent of Daniels.

It seems to be appellant's position that inasmuch as Letha Scott had made a written assignment of the policy in Daniels' possession to appellant, and had not theretofore executed a written assignment to Daniels, Daniels had no interest of any character in the policy or in the distribution of its proceeds. We are unable to agree with appellant's contention. The evidence shows that Letha Scott had delivered the policy to Daniels prior to executing the assignment to appellant. Although she made no written assignment to Daniels, their agreement was that the amount due on the policy should be collected, and $273.50 of the proceeds should belong to him; this amount being due him for burying her husband. Again, it was the state's theory, given support in the testimony of Letha Scott, that the assignment of the policy to appellant was obtained by fraud on the part of appellant. It is our understanding that the injured party had the right, when the policy was delivered to him under the agreement mentioned, to require that $273.50 of the proceeds to be derived therefrom be delivered to him as his property, in order that the debt due him be discharged. We understand the rule to be that in the absence of a statutory provision, or provision in the insurance policy to the contrary, an insurance policy may be assigned by delivery thereof, without a written assignment, if there is sufficient legal consideration supporting the transfer. Ruling Case Law, vol. 14, p. 1001. Appellant has failed to cite any case announcing a contrary doctrine, and we know of none. It is not shown that the policy required a written assignment, and we know of no statute inhibiting a parol assignment of an insurance policy. The opinion is expressed that, under the evidence, $273.50 of the proceeds of the $1,000 policy collected by appellant was the property of the injured party Daniels.

We have no doubt that the state's testimony is sufficient to show that appellant was the agent of Daniels for the purpose of collecting the $273.50 due Daniels, and that, under their agreement, it was appellant's duty to deliver said amount of money to Daniels when collected. In Corpus Juris, vol. 2 on page 420, appears the following: "An agent is defined to be one who acts for or in place of another by authority from him; one who undertakes to transact some business or manage some affair for another by authority and on acount of the latter." See also Brown v. State, 99 Tex. Cr. R. 441, 270 S. W. 179; Coney v. State, 100 Tex. Cr. R. 380, 272 S. W. 197; Cowan v. State, 49 Tex. Cr. R. 466, 93 S. W. 553.

For the first time appellant contends that there is a variance between the name of the injured party, as alleged in the indictment, and the name as testified to by the witnesses. The name of the injured party was alleged in the indictment to be "Daniel." The proof showed that his name was "Daniels." We are of the opinion that the variance is immaterial. The rule seems to be that if the names may be sounded alike without doing violence to the power of the letters found in the variant orthography, and if the name as stated be idem sonans with the true name, the variance and misspelling is not material. Davis v. State, 88 Tex. Cr. R. 7, 224 S. W. 510. In Davis' Case it was held that "Hodge" and "Hodges" come within the rule, and that the variance was not of sufficient importance to require a reversal of the judgment. The variance between "William" and "Williams" has been held to be immaterial. Williams v. State, 5 Tex. App. 230. "Sawyer" and "Sawyers" are not materially variant. Ex parte Sawyers (Tex. Cr. App.) 48 S. W. 512.

Appellant requested the court to charge the jury, in substance, that if appellant acquired the insurance policy from Daniels by virtue of an assignment from Letha Scott, he should be acquitted. The special charge omitted the state's theory that the assignment had been obtained by appellant by fraud. In so far as the assignment could be a defense, it appears to have been covered in the main charge, wherein the jury were advised that if they believed that Letha Scott assigned the policy to appellant to be collected by him, and that the entire proceeds were to be retained by appellant as his fee for representing her in her murder case, the...