Collins v. State

Citation244 S.W. 153
Decision Date21 June 1922
Docket Number(No. 6642.)
PartiesCOLLINS v. STATE.
CourtCourt of Appeals of Texas. Court of Criminal Appeals of Texas

Appeal from Smith County Court; D. R. Pendleton, Judge.

A. H. Collins was convicted of embezzlement, and he appeals. Affirmed.

W. H. Hanson and Butler, Price & Maynor, all of Tyler, for appellant.

Brady P. Gentry, Co. Atty., of Tyler, and R. G. Storey, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the county court of Smith county of embezzlement of $10 in money, and his punishment fixed at 100 days in jail.

The charging part of the information is as follows:

"On or about the 1st day of November, A. D. 1920, and anterior to the filing of this information in the county of Smith and State of Texas, one A. H. Collins was the bailee of certain money bailed to him by E. A. Brown, to wit:

"Ten dollars in money, of the value of ten dollars and which said money was the property of E. A. Brown, and had come into the possession of and was under the care of the said A. H. Collins by virtue of his said agency as bailee, aforesaid, and the said A. H. Collins did then and there fraudulently, without the consent of the said E. A. Brown, his principal, embezzle, misapply and convert to his own use the said money, against the peace and dignity of the state."

We have upheld indictments of this same form. The description of appellant as bailee, is sufficient. Dowdy v. State (Tex. Cr App.) 64 S. W. 253; Goodwyn v. State (Tex. Cr. App.) 64 S. W. 251. The description of the property embezzled as $10 in money is sufficient. Taylor v. State, 29 Tex. App. 499, 16 S. W. 302; Hamer v. State, 60 Tex. Cr. R. 341, 131 S. W. 813. Delivery and acceptance of money to be paid to another for the benefit of the deliverer, sufficiently shows, first, the agency of the acceptor, appellant in this instance; second, receipt of the money of the deliverer, Brown in this instance; third, receipt of same in the course and by virtue of such agency. The facts in the instant case, which are admitted by appellant as well as proven by the state, establish the above propositions.

A number of the members of the K. of P. Lodge in Tyler desired to organize a lodge of a side degree of said order, and in pursuance thereof proceeded to circulate applications for membership, purposing, if a sufficient number was obtained, to organize a temple of the D. O. K. K., familiarly known as the Dokeys. Appellant was one of the men endeavoring to organize said lodge; and seems to have been the collector of the advance payments from the proposed candidates. One E. A. Brown paid to appellant $10, claiming that the latter was to pay it back to Brown if a lodge or temple of said order was not organized, and if same was organized the money was to be paid over to the proper person connected with said order. The $10 was paid to appellant about November 1, 1920. Others also paid money to him for the same purpose, he testifying as a witness in his own behalf that some 30 or more parties had paid to him $10 each prior to January 19, 1921. Not succeeding in getting enough members to organize a separate lodge, the parties interested decided to become members of a lodge of said order in Dallas, and for that purpose invited the degree team of the Dallas lodge to come to Tyler and perform the ceremony of initiation. The date fixed for said initiation was April 2, 1921. About 30 days before said initiation the matter of what should be done in the premises was up for discussion quite freely among the men interested. A letter had been written by some one connected with the Dallas lodge, offering to come and confer the degree, but wanting the money collected to be forwarded to them at Dallas before they came down to Tyler. This matter was publicly discussed in the meeting of the K. P. Lodge of Tyler, and was privately discussed between members on the street. During these discussions it is shown by the state that appellant frequently stated that he had in his possession at that time as much as $400 of the money which he had collected from the various persons desiring to become members in the Dokeys; it being stated by him that he had said money in the bank, and that it would be forthcoming whenever it was needed.

A number of witnesses testified to statements of appellant regarding this matter; all being substantially the same. It was shown that there were two banks in Tyler, and that appellant had no account at one of same. The proper official of the other bank testified, identifying and certifying to the correctness of a copy of appellant's account in said bank from October 1, 1920, to April 2, 1921. Said account showed a check drawn by appellant for $53 on January 19, 1921. Testifying regarding this check, appellant said that it represented all of the money belonging to the Dokeys which he had in the bank on said date, and that he had collected at that time $10 each from some 30 or more applicants for membership. He stated that he had the balance of the money at home at said time, and that he drew said $53 from the bank to prevent same being caught by garnishment upon a judgment obtained against him in the justice court. On February 1st it was shown that appellant deposited $102, and that from that time until April 1st his account was being gradually diminished by various small checks against it. On March 12th his balance in said bank was $3.01, and on March 26th it was $43. On March 31st it was $36.01. On April 1st appellant deposited $160, and on April 2d gave a check against this account for $195. Testifying regarding these matters appellant said that after he drew said $53 of the Dokeys money from the bank on January 19th to prevent its being caught by said garnishment, he carried $50 of it in his pocket until April 1st, and that he then redeposited it in the bank with other moneys, making up the $160 deposit shown to have been made on that date. He admitted making a deposit on February 1st, February 16th, March 19th, and March 26th, and said that in each of said deposits was some of the Dokeys money, but that he kept in his pocket the money drawn out by him on January 19th.

On the morning of April 2d the degree team came from Dallas to confer the initiation. Officers of said team received from appellant the applications and about $350 in money and checks, and proceeded to check up the amount received against the applications marked paid. Three of said officers testified and stated in substance that after making said check they discovered, and so informed appellant, that he was short something over $400. Appellant left, stating that he would go home...

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6 cases
  • Great Nat. Lloyds v. Hall, 15484
    • United States
    • Court of Appeals of Texas. Court of Civil Appeals of Texas
    • February 12, 1954
    ...349, 144 S.W. 944; Wilson v. State, 47 Tex.Cr.R. 159, 82 S.W. 651; York v. State, 140 Tex.Cr. R. 199, 143 S.W.2d 770; Collins v. State, 92 Tex.Cr.R. 388, 244 S.W. 153; Jackson v. State, 44 Tex.Cr.R. 259, 70 S.W. 760; Messner v. State, 78 Tex.Cr.R. 632, 182 S.W. 329; Pye v. State, 74 Tex.Cr.......
  • Stein v. State, 18665.
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • February 3, 1937
    ...to quash the indictment on the ground that it failed to allege "the kind or character of bailment or contract." In Collins v. State, 92 Tex.Cr.R. 388, 244 S. W. 153, we held in an embezzlement case that the description of the accused in the indictment as bailee was sufficient. See, also, Do......
  • Larkin v. State, 24760
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • May 31, 1950
    ...It will also be of interest to bear in mind that proof of a conversion may properly be made by circumstantial evidence. Collins v. State, 92 Tex.Cr.R. 388, 244 S.W. 153. Also, concealment and denials, together with a failure to account for the property held in trust, are sufficient circumst......
  • Seay v. State
    • United States
    • Court of Appeals of Texas. Court of Criminal Appeals of Texas
    • April 5, 1961
    ...Tex.Cr.App., 64 S.W. 253; Hamer v. State, 60 Tex.Cr.R. 341, 131 S.W. 813; Wray v. State, 89 Tex.Cr.R. 632, 232 S.W. 808; Collins v. State, 92 Tex.Cr.R. 388, 244 S.W. 153; Hunter v. State, 19 Tex.Cr.R. 558, 45 S.W.2d 969; Patrick v. State, 164 Tex.Cr.R. 427, 299 S.W.2d 302; and 5 Branch's An......
  • Request a trial to view additional results

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