Dickey v. State

• Decision Date: 21 February 1912
• Citation: 144 S.W. 271
• Parties: DICKEY v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 271

DICKEY v. STATE.

Court of Criminal Appeals of Texas.

February 21, 1912.

Appeal from District Court, McLennan County; Richard I. Munroe, Judge.

R. B. Dickey was convicted of misapplying property of a city, and he appeals. Reversed, and prosecution dismissed.

Scott, Sanford & Ross, J. N. Gallagher, and Z. I. Harlan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

This record is voluminous both in volume and questions suggested for revision. The indictment contained five counts. Appellant was convicted under the third, which is as follows: "And the grand jurors aforesaid, upon their oath aforesaid, do further present in and to the court aforesaid that in said state and county R. B. Dickey was then and there an officer, to wit, secretary of an incorporated institution, to wit, the city of Waco, which was then and there an incorporated city in said county and state, and as such officer and by virtue of said office there had come into his hands and was in his charge, custody, and possession, a written instrument of the tenor following: `No. 43. Waco, Texas, Mar. 29, 1909. L. B. Black, Treas. E. A. Sturgis, Treasurer City of Waco: Pay to the order of R. B. Dickey City Secy $314.25 three hundred fourteen & 25/100 dollars from First Series Sanitary Sewer Bonds Skg Fund. Account of Pay Roll and Estimate San Sewer Extensions. The City of Waco Jas. B. Baker Mayor. Attest: R. B. Dickey City Secretary.' Indorsed on back: `R. B. Dickey, City Secy.' — which said written instrument was a valid, legal, and valuable obligation then and there of the value of $314.25, and which said written instrument was then and there the property of said incorporated institution, and the said R. B. Dickey did then and there unlawfully and fraudulently take, misapply, and convert the same to his own use."

A discussion of this appeal will be confined to this count. The city charter created, among other things, the office of city secretary, and defined his duties to be substantially: (1) To attend the meetings of the city council and keep accurate minutes of the proceedings thereof in a book to be provided for that purpose; (2) to engross and enroll all laws, resolutions, and ordinances of the city council; (3) to keep its corporate seal; (4) to take charge of, preserve, and keep in order all the books, recorded papers, documents, and files of said council; (5) to countersign all commissions issued to the city officers and licenses issues by the mayor, and to keep record thereof; (6) to make out all notices required under any regulation or ordinance of the city; (7) to draw all warrants on the treasurer and countersign the same and keep an accurate account thereof in a book provided for the purpose; (8) he was also made the general accountant of the corporation and required to keep in books regular accounts of the receipts and disbursements for the city, and, separately, under proper heads, each cause of receipts and disbursements, and also an account with each person, including officers, who had money transactions with the city, crediting the amounts allowed by proper authority, and specifying the particular transaction to which interest applied; (9) to keep a register of bonds and bills issued by the city, all evidences of debts due and payable to it, noting particulars thereof, and all facts connected therewith, as they occurred; (10) to keep all contracts made by the city council; (11) to do and perform all such other duties as might be required of him by law, ordinance, resolution, or order of the city council; (12) and he was also made ex officio clerk of the police court, and, as such, was given power to administer oaths, take affidavits, issue warrants, subpœnas, and other process. It might be further stated that there were no orders of the mayor or city council imposing other needful or reasonable duties upon the city secretary that pertained to his office. The only resolution or action of the city council relating to or defining the duties of this officer was one adopting the report of a special committee, which declared that the office was one of record only and prohibiting the secretary, and this by his own request, from collecting any funds belonging to the city, and imposing that duty upon the collector. The charter of the city of Waco is an act of the Legislature, and, among other things, it is provided as follows in said charter: "This act shall have force and effect of a public act, and the courts shall take notice thereof in all proceedings without further proof." There was also created a city treasurer, and bond was required of this officer, and it was made his duty to receive and keep all moneys belonging to the city. Provision was also made for the payment by him from the same upon the order of the mayor, attested by the secretary under the seal of the corporation, of any of its debts, and he is prohibited from paying any order unless said order shall show on its face that the city council has directed its issuance, and further shows for what purpose it was issued.

1. It is contended: First, that the order alleged in the indictment is invalid, in that it is not charged in the indictment to have been under seal as required by the charter; second, that it having been brought under article 103 of White's Penal Code, the evidence must show that the money or property was public funds or property owned by the city, and such funds or property must have come into the possession of the officer by virtue of his office, and his duties to receive the same must be defined by law and cannot be created by custom or usage; third, that a city official is not guilty of embezzlement or fraudulent conversion of a city warrant which has come into his possession where he takes the identical warrant to the city treasurer and deposits same to the city's credit, even though the deposit is made to cover up a pre-existing shortage on his part with the funds with which he makes such deposit; fourth, a verdict of guilty in a criminal case which, on the facts, is contrary to the court's charge, should be set aside. Without discussing same, it may be stated that under the charter the city secretary is not charged with the duty of receiving, paying out, or handling the said funds, and, if he did so, that it was not within the scope of his official duty, and he would not and could not become responsible under a charge of embezzlement, misapplication, or conversion of the property of the city simply because he may have collected and handled funds of the city or paid off its debts with the funds. It is clearly to be observed under the terms of article 103, supra, that the officers therein mentioned can only be charged with the duty of handling property of the city which comes into his possession by virtue of his office, and where it is sought to prosecute for the fraudulent conversion of such funds to his own use, the indictment must show that the funds came into his possession by virtue of his office. If the property does not so come into his possession, or if he is not authorized by the terms of his office to receive the property, then he cannot be convicted under this statute. Hartnett v. State, 56 Tex. Cr. R. 281, 119 S. W. 855, 23 L. R. A. (N. S.) 761, 133 Am. St. Rep. 971; Warswick v. State, 36 Tex. Cr. R. 63, 35 S. W. 386; State v. Bolin, 110 Mo. 209, 19 S. W. 650; Moore v. State, 53 Neb. 831, 74 N. W. 319; Henderson County v. Richardson, 15 Tex. Civ. App. 699, 40 S. W. 38; Rice v. Vasmer, 51 Tex. Civ. App. 167, 110 S. W. 1005; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; State v. Newton, 26 Ohio St. 265; United States v. Hutchinson, 4 Clark (Pa.) 211; Sherrick v. State, 167 Ind. 345, 79 N. E. 193; County of San Luis Obispo v. Farnum, 108 Cal. 562, 41 Pac. 445; Com. v. Alexander, 129 Ky. 429, 112 S. W. 586; State v. Meyers, 56 Ohio St. 340, 47 N. E. 138; R. v. Orman, 36 Eng. L. & Eq. 611. It would follow, therefore, if appellant, under his duty as city secretary, was...