Germany v. State
Decision Date | 08 February 1928 |
Docket Number | (No. 11317.) |
Citation | 3 S.W.2d 798 |
Parties | GERMANY v. STATE. |
Court | Texas Court of Criminal Appeals |
Appeal from District Court, Lubbock County; Clark M. Mullican, Judge.
J. R. Germany was convicted of misapplying public funds as an officer of an incorporated city, and he appeals. Reversed and remanded.
Vickers & Campbell and Bledsoe & Crenshaw, all of Lubbock, for appellant.
Lockhart & Garrard and F. D. Brown, all of Lubbock, and A. A. Dawson, State's Atty., of Austin, for the State.
Conviction for misapplication of public funds by officer of incorporated city; punishment confinement in the penitentiary for five years.
Article 95, P. C. 1925, denounces the offense of which appellant was convicted. He was charged with committing the offense while holding the office of tax collector of the city of Lubbock. It was incumbent upon the state to establish in evidence beyond a reasonable doubt that appellant held the office described in the indictment. Dickey v. State (Tex. Cr. App.) 144 S. W. 271; Warswick v. State, 36 Tex. Cr. R. 63, 35 S. W. 386; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302.
The burden in the respect mentioned would have been discharged by establishing that appellant was city collector de facto. An officer de facto is criminally liable for malfeasance in office. Florez v. State, 11 Tex. App. 102; Mechem on Public Officers, § 336; Cyclopedia of Law and Procedure, vol. 29, p. 1394; Bishop on Criminal Law (9th Ed.) vol. 1, p. 339.
The charter of the city of Lubbock provided for the office of city secretary and that of city tax collector. The city commission had authority to consolidate said offices. No such action had been taken, and on the date appellant was alleged to have committed the offense, he was performing the duties of secretary, having been appointed to that position by the city commission, and, according to the state's testimony, he was also performing the duties of tax collector, having acted in the capacity of tax collector for several years with the acquiescence and recognition of the governing body of the city and the public generally. Under the city charter, an official was prohibited from at the same time holding more than one office. According to appellant, he occupied the position of city secretary, and one Holland was tax collector. In support of his contention, appellant showed that he had employed Holland as tax collector pursuant to a resolution of the city commission; that Holland had drawn his salary from the city for his services, maintained an account in the bank as tax collector, and performed generally the duties of the office; and that he, appellant, drew only his salary as city secretary. Holland had never executed a bond and taken the official oath prior to the indictment of appellant. He disclaimed any right to the office and asserted that he was appellant's deputy collector. Other than that the record shows that appellant entered into bond in 1923, in an amount required of the city tax collector, the record is silent as to the appointment of appellant to the office of tax collector. Also the record fails to show that he duly qualified as city secretary.
The state's testimony shows that appellant's claim to the office of tax collector was open and notorious, which, together with his performance of the duties thereof for several years with the acquiescence and general recognition of the governing body and citizenship, established his reputation of being the officer he assumed to be. Such facts are sufficient to constitute one a de facto officer. In the case of Ex parte Tracey (Tex. Cr. App.) 93 S. W. 538, after discussing many cases dealing with the subject of de facto officers, Judge Henderson said:
See, also, Burkhardt v. State, 83 Tex. Cr. R. 228, 202 S. W. 513; City of Christine v. Johnson (Tex. Civ. App.) 255 S. W. 629; Cooley's Constitutional Limitations (8th Ed.) p. 1356; Ruling Case Law, vol. 22, § 315, p. 594; McQuillan's Municipal Corporations, vol. II, § 480.
The fact that appellant performed the duties of secretary and collector at the same time did not, within itself, divest him of the character of tax collector de facto. If section 40, art. 16, of the Constitution, which prohibits one person from holding or exercising, at the same time, more than one civil office of emolument, was applicable to appellant's case, he was merely rendered ineligible by virtue thereof to hold the office of tax collector. Of like effect was the prohibition of the city charter upon the subject. A person may be a de facto officer though ineligible to such office. Broach v. Garth et al. (Tex. Civ. App.) 50 S. W. 594; Graves v. M. Griffin O'Neil & Sons (Tex. Civ. App.) 189 S. W. 778. In the case of Woodside v. Wagg, 71 Me. 207, the court was concerned with the question of the validity of the acts of a judge who had vacated his office by accepting an election to the Legislature. After qualifying and acting as a member of that body, he performed the acts in question, as judge of a court. In upholding the validity of his acts, the court referred to the fact that the offices of judge of the municipal court and member of the Legislature were incompatible under the Constitution of the state of Maine and that the acceptance and qualification for one of the offices while holding the other would be a resignation from the first office. The court stated the question under consideration thus:
The conclusion was reached, after reviewing the authorities on the subject, that, no other person having been appointed judge in his stead, he was a justice de facto. In Sheehan's Case, 122 Mass. 445, 23 Am. Rep. 374, the court, in dealing with a similar state of facts, said:
See, also, Mechem on Public Officers, § 329.
Two persons cannot, at the same time, be in the actual occupation and exercise of an office for which the law provides only one incumbent. Thus an officer de jure and an officer de facto cannot be in possession of the same office at the same time, nor can two different officers de facto be in an office for which the law provides only one incumbent. Cyclopedia of Law and Procedure, vol. 29, p. 1391; Mechem on Public Officers, §§ 322 and 323.
The court charged the jury on the law of circumstantial evidence as follows:
A number of exceptions were presented to this charge, among them being that it had the effect of carrying the inference to the jury that the case rests partly upon circumstantial evidence and partly upon direct evidence. As we understand the record, the case rests wholly upon circumstantial evidence. The main fact to be proved was the appropriation of the money in question by appellant. The only...
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French v. State, 52006
...State's motion for rehearing is overruled, and the order revoking probation is reversed. The original opinion relied on Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798, which the dissenting opinion incorrectly concludes is inapposite to the instant case. The Court in Germany held that an ......
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Snow v. State
...25 Tex.Jur. 245; Lowe v. State, 83 Tex.Cr.R. 134, 201 S.W. 986; Marta v. State, 81 Tex.Cr.R. 135, 193 S.W. 323; Germany v. State, 109 Tex.Cr.R. 180, 3 S.W.2d 798, 800; Hamilton v. State, 40 Tex.Cr.R. 464, 51 S.W. 217; Ex parte Tracey, Tex.Cr.App., 93 S.W. 538; Hagler v. State, 116 Tex.Cr.R.......
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