Ferrell v. State

• Decision Date: 11 December 1912
• Parties: FERRELL v. STATE.
• Court: Texas Court of Criminal Appeals

152 S.W. 901

FERRELL v. STATE.

Court of Criminal Appeals of Texas.

December 11, 1912.

On Motion for Rehearing, January 22, 1913.

Appeal from District Court, Jones County; Jno. B. Thomas, Judge.

N. G. Ferrell was convicted of fraudulently converting public money, and appeals. Affirmed.

Brooks & Brooks and C. C. Ferrell, all of Anson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was the tax collector of Jones county for the term beginning after the general election in November, 1908, and held the office until some time in the latter part of July, 1910, when he resigned. He was indicted by the grand jury of Jones county for misapplying the money of the state which he had collected as taxes, and given the lowest penalty. The law (article 96, Penal Code) under which the conviction was had is, "If any officer of the government, who is by law a receiver or depositary of public money, * * * shall fraudulently take, or misapply, or convert to his own use, any part of such public money or secrete the same with intent to take, misapply or convert it to his own use * * * he shall be punished," etc. There were some 14 counts in the indictment. Only two were submitted by the court to the jury for a finding. Both of these counts follow substantially, and as literally as can be, the form laid down by Judge White under said article of the Code in his annotation thereof, except that in the first of these counts, after all of the proper and necessary allegations in the first part, charges, "Which said sum of money he, the said N. G. Ferrell, did then and there unlawfully and fraudulently take, misapply, and convert to his own use"; in the other count it is charged, "Which said money he, the said N. G. Ferrell, did unlawfully and fraudulently secret the same with intent to take, misapply, and convert the said money to his own use." It will be noted that in Judge White's form it is charged that the accused did "unlawfully and fraudulently secrete and take and misapply and convert to his own use." The first count in this indictment leaves out the word "secrete" and uses the others contained in the statute, "did take and misapply and convert." And the other count in this indictment presents secreting as a separate count, but misspells the word "secrete" as contained in the statute.

The appellant made a motion to quash the second count above stated because it did not follow the language of the statute defining the offense nor use other words conveying the same meaning, and the first of said counts, together with certain others contained in the indictment, because they were surplusage and unnecessary and calculated to confuse and mislead the jury and prejudice appellant's rights.

There can be no question as to the correctness of the first count above stated. It follows the statute as strictly and as literally as could be in its language.

We take it that appellant's objection to the other count, while not specifically so stated, is to the word "secret" instead of that used in the statute, "secrete." Our statute expressly provides that the "words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words." C. C. P. art. 460. Again article 460 is: "An indictment for any offense against the penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment." The next article is: "When a statute creating or defining any offense uses special or particular terms, an indictment on it may use the general term, which, in common language, embraces the special term." Again article 453 is: "The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense."

Mr. Webster defines "secrete" (the verb transitive) in his main first definition as, "to deposit in a place of hiding, to hide, to conceal." He defines the adjective "secret" as, "hidden, concealed"; and the noun as, "something studiously concealed, a thing kept from general knowledge, what is not revealed, or not to be revealed." The Century Dictionary defines the verb transitive "secrete," "to make or keep secret, hide, conceal, remove from observation, or the knowledge of others"; and defines the adjective "secret" as, "set or kept apart, hidden, concealed"; and defines the noun "secret" as, "something studiously hidden or concealed, a thing kept from general knowledge, what is not or should not be revealed." So that the use of the word "secret" in this count of the indictment wherein it charges, "Which said money he, the said N. G. Ferrell, did unlawfully and fraudulently secret the same with intent to take, misapply, and convert the said money to his own use," in our opinion is equivalent and means substantially the same thing as if the word "secrete," the statutory word, had been used. White's C. C. P. § 344, subd. 5, p. 254, where some of the authorities are collated. And in our opinion there is no question but that a person of common understanding could know and did know from this allegation what is meant and with that degree of certainty that gave the appellant notice of the particular offense with which he is charged, and did and would enable the court, on conviction, to pronounce a proper judgment in the case, and would, without question, enable the appellant to plead the judgment in this cause in bar of any prosecution for the same offense where the word "secrete" instead of "secret" should be used.

The uncontradicted evidence in this case shows clearly that the tax assessor made out the tax roll for the year 1909; that it was submitted to the commissioners' court, and, perhaps after some corrections, it was approved by the commissioners' court and then turned over to and received by appellant about the 16th of October, 1909, as such tax roll; that he and his deputies proceeded to collect, by virtue of that tax roll, the taxes for said year in accordance with that roll; that he received a large amount of county tax and properly accounted to and paid to the county all that he had received; that he received a large sum of state tax; and that he did not account for and did not pay to the state, or to any one for it, the sum of $6,465.65, and had not paid the said sum or any part thereof to the state, or to any one for the state, at the time of the trial of this case. It is true that appellant personally did not collect all of this tax himself. His properly authorized deputies did do so for him at his instance and with his knowledge, and all of said money, other than what he himself took out of the collections as they were being made by him or his deputies, were deposited from time to time in three banks, and that only so much of the funds so received by him and his deputies and deposited in said banks was paid to the state by his deputies and said bank as was directed and authorized by him, and that he personally took from the collections from time to time and drew from the banks all of said $6,465.65, and that no one else other than he has taken, misapplied, or converted the same to his own use, or secreted the same or any part thereof. It is unnecessary to detail this evidence. It is shown in a statement of facts of some 235 typewritten pages, all of which we have read and considered.

By one bill appellant complains of the testimony of the tax assessor shown on some four or five typewritten pages, and in connection therewith the affidavit that he made to the correctness of said rolls and the approval thereof by the commissioners' court. By this bill appellant makes many objections to the introduction of said tax roll, but they are made as objections, and not approved as facts, by the court in allowing the bill. The gist of the matter, as we understand it, is that there was some uncertainty as to when the assessor made his affidavit to the correctness of said roll, and some confusion in the copy of the certificate thereon by the commissioners' court of whether it is the tax rolls for 1909, or that for 1908; but, taking it as a whole, it is reasonably certain that it was the tax rolls for 1909 and not 1908, and that the tax assessor did make his affidavit substantially in compliance with the law thereto. But, even if there should be some doubt as to this, there is no question whatever but that appellant received this tax roll as the tax roll for 1909, and that it was the assessment of the property of said county for 1909, and that he collected the money thereunder, and that the money collected thereunder and thereon was the state's money, which he has taken, misapplied, converted to his own use, or secreted.

By another bill appellant complains of the question and answer of the state's witness Will Griffith, who was one of appellant's deputies and who collected and received as such, in connection with another deputy or deputies, the said taxes. The question was this: "State whether or not you have seen Mr. Ferrell (appellant), and, if so, on how many occasions take money from the tax collector's office out of the tax collections for his own personal use?" To which he answered: "He might have possibly taken as much as $5 or $10. I think I have seen him take as much as $5 or $10." The objection to this testimony was that this was only the opinion of the witness as to whether the money appellant took was tax money and as to whether appellant took it for his own personal use. The bill is very meager, but, as it is presented, it is our opinion that this...