Clark v. State

• Decision Date: 15 March 1911
• Citation: 135 S.W. 575
• Parties: CLARK v. STATE.
• Court: Texas Court of Criminal Appeals

135 S.W. 575

CLARK v. STATE.

Court of Criminal Appeals of Texas.

March 15, 1911.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

V. M. Clark was convicted of embezzlement, and he appeals. Reversed and remanded.

C. E. Sheppard, Will A. Morriss, and Jno. R. Storms, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted under the fourth count of the indictment of embezzlement.

The indictment alleges that on the 2d of May, 1908, appellant was in possession of $1,500 in money furnished him by Mrs. Marion Pillsbury, which was to be used exclusively in payment of material and labor on improvements of property situated in San Antonio, Bexar county, Tex., at 419 Dallas street; that appellant was to act as agent and attorney of said Marion Pillsbury in purchasing materials necessary and in procuring labor necessary to do said work, and, by reason of being the agent and attorney of said Pillsbury, appellant came into possession of the said $1,500; and that he did not use said money as aforesaid for material and labor, but did fraudulently embezzle, misapply, and convert to his own use, without the consent of Marion Pillsbury, $500 of said money. This is the substance of the count upon which the conviction was predicated.

The contract between Mrs. Pillsbury and appellant is to the effect that she had agreed to furnish appellant $1,500 for the purpose of making improvements on property owned by appellant on Nos. 417 and 419 Dallas street, in the city of San Antonio, which improvements looked to the completion of a house situated on said premises, and that said $1,500 was "to be paid exclusively for labor and material going in the construction of said house." The contract further states that in consideration of the premises that the agreement on the part of appellant was to pay Mrs. Pillsbury the sum of $1,500 on the 1st of May, 1909, together with interest on said amount at the rate of 9 per cent. per annum from date, the interest to be paid monthly in advance. It was also agreed that Mrs. Pillsbury should stay in the house with her child until May 1, 1909, and live with appellant and his wife as a part of the family; that she was to assist in taking care of the house, and in performing the household duties with Mrs. Clark such as might arise during that year, reserving to herself the option of going and coming at her pleasure, and to stay as long as it would suit her pleasure and convenience. The purpose of the contract was to meet the requirements of the statute providing for a lien upon the homestead for improvements, and for labor and material necessary for such improvements, and it was expressly agreed and understood that the purpose of this contract was to create a mechanic's lien upon the house and lot in favor of Mrs. Pillsbury. It was further stipulated that she authorized and empowered appellant to purchase the necessary material and to procure and pay for necessary labor not to exceed the sum of $1,500 for the purpose of the completion of said house. And it was further agreed that the said sum of $1,500, receipt of which is acknowledged by this instrument, shall be deposited in the bank, etc. It is further mentioned in the contract that this indebtedness is evidenced by the promissory note of appellant and his wife of even date with this instrument; and it is further stipulated that, in purchasing the material and securing the labor necessary to complete the house, appellant was to act as the agent and attorney of Mrs. Pillsbury, inasmuch as the contract is intended to protect her for the advancement of said sum for the purposes stated. There was a note executed at the same time by appellant and his wife, Mrs. Cora M. Clark, for $1,500, with interest at 9 per cent. per annum from date, stipulating attorney's fees in case of litigation. These instruments were dated April 30, 1908, the note being due May 1, 1909. Appellant's wife owned valuable property, as mentioned in the contract, estimated to be worth something like $9,000, the value of the house being estimated at about $6,000. Some of the purchase price of the property was unpaid at the time, a vendor's lien being reserved upon the property in favor of the original seller. At the same time or about the time of the execution of the above instrument, appellant and his wife also gave Mrs. Pillsbury a lien on property in the city of Dallas shown to be worth $6,000. It is also shown that there was an incumbrance on the Dallas property amounting to $3,000. All this property is shown to have belonged to the wife of appellant, and that situated in San Antonio was used and occupied as a homestead. Immediately upon securing this money, appellant began improving the San Antonio property, and testifies that he expended more than the $1,500 in improving the same, and that, when...