Ellis v. State, 30019

• Decision Date: 10 December 1958
• Docket Number: No. 30019,30019
• Citation: 318 S.W.2d 655,167 Tex.Crim. 87
• Parties: J. Fred ELLIS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 655

318 S.W.2d 655

167 Tex.Crim. 87

J. Fred ELLIS, Appellant, v. The STATE of Texas, Appellee.

No. 30019.

Court of Criminal Appeals of Texas.

Dec. 10, 1958.

Fryer, Milstead & Luscombe, El Paso, for appellant.

William E. Clayton, Dist. Atty., Edwin F. Berliner, Asst. Dist. Atty., El Paso, and Leon B. Bouglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is under Art. 95, Vernon's Ann.P.C., for the misapplication of city funds; the punishment, three years.

The Grand Jury of El Paso County on June 23, 1955, duly presented two indictments, each having only one count, into the 34th District Court, charging J. Fred Ellis with the misapplication of city funds. These indictments were and remained identical until the clerk of said court gave one of them a file No. 16,932 on the file docket of said court and then gave the other file No. 16,933 on the same docket. The indictments each allege that 'J. Fred Ellis on or about the 13th day of September 1954,' as an officer of the City of El Paso misappropriated the sum of $120 in money.

The J. Fred Ellis charged in each of the indictments is one and the same person.

Upon the present trial in Cause No. 16,933, appellant filed a plea of former jeopardy, alleging that on January 16, 1956, he was placed upon trial in Cause No. 16,932 in the same court on an indictment charging the same transaction as charged in the indictment in Cause No. 16,933; that he entered a plea of not guilty, and after the evidence was adduced, the court in instructing the jury, followed the allegations in the indictment, and on January 20, 1956, the jury returned its verdict finding him not guilty.

The plea appears to be in proper form. It was timely presented after the court had called Cause No. 16,933 for trial, duly considered and by the court refused.

These were facts and circumstances of different discrepancies in separate transactions of the handling of city funds in the office of the License Collector, introduced by the state in Cause No. 16,933, the instant case, that could support a conviction. This also was true as to appellant's trial in Cause No. 16,932 in 1956 which resulted in an acquittal.

The state on appeal contends, although it made no election at any time during the trial, that in Cause No. 16,932, the 1956 case, it relied for a conviction upon the discrepancy in the handling of license No. 98, issued to Faust Wardy.

In Cause No. 16,933, the 1958 case, the state claims on appeal, although it made no election at any time during the trial, that it relied for a conviction upon the discrepancy in the handling of license No. 99, issued to D. R. Pinney.

The general rule is that the state is not bound by the allegation of 'on or about' in an indictment as to the date of the commission of the offense, but may rely upon any date within the period of limitation. 23 Tex.Jur. 648, Sec. 41; Vidaurri v. State, 155 Tex.Cr.R. 17, 230 S.W.2d 536; Lozano v. State, 159 Tex.Cr.R. 613, 266 S.W.2d 147. The statute of limitation applicable to the offense here charged permits the prosecution and conviction of a person for such offense when committed within a period of three years anterior to the presentment of the indictment. Art. 180, Vernon's Ann.C.C.P.; Kugle v. State, 124 Tex.Cr.R. 550, 64 S.W.2d 961.

In submitting each of said causes to the jury, the court used identical language in applying the law to the facts, authorizing the jury to return a verdict with the following instructions:

'If you believe from the evidence, beyond a reasonable doubt, that at the time and place mentioned in the Indictment that the Defendant was the License Collector of the City of El Paso and which was an office of the City of El Paso, and the Defendant was an officer of the City of El Paso and that as such officer was charged with the duty of receiving license fees due the City of El Paso, Texas, and that at the said time and place there had come into his custody and possession, and there was then and there in his custody and possession, by virtue of said office the One Hundred and Twenty Dollars ($120.00) described in the Indictment, and that the same was the money of the City of El Paso, Texas, and that at such time and place the Defendant, J. Fred Ellis, fraudulently took, misapplied, or converted to his own use the One Hundred and Twenty Dollars ($120.00) described in the Indictment, then find the Defendant guilty as charged in the Indictment and assess his punishment at confinement in the penitentiary for not less than two nor more than ten years.

'If you do not so believe, or if you have a reasonable doubt thereof,...