Goodwyn v. State

• Decision Date: 19 June 1901
• Citation: 64 S.W. 251
• Parties: GOODWYN v. STATE.
• Court: Texas Court of Criminal Appeals

64 S.W. 251

GOODWYN v. STATE.

Court of Criminal Appeals of Texas.

June 19, 1901.

Appeal from Madison county court; C. E. Gustains, Judge.

J. H. Goodwyn was convicted of embezzlement, and he appeals. Affirmed.

Duncan & Jones and Butler & Lasseter, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

BROOKS, J.

Appellant was prosecuted by information for embezzlement by bailee. He was convicted, and his punishment assessed at a fine of one dollar and one hour's confinement in the county jail.

Appellant's brief contains a sufficient statement of the evidence, as follows: "The material facts which it is claimed constitute the offense are so brief that we recite them here: The indictment charges that about the 1st day of June, 1899, defendant, as bailee, embezzled twenty-nine dollars, the property of M. P. Griffin, without said Griffin's consent. Griffin was a justice of the peace, and the substance of his testimony is that in the early part of the year 1899 he handed one Zulch nineteen dollars, fines collected by him, and told him to deliver the same to defendant, and tell him that he (defendant) knew what to do with it. Some two or three months after that, defendant was out at Willow Hole, and he (Griffin) handed him ten dollars and told him it was fines collected, and to carry it to town, and that he (defendant) knew what to do with it. Just before the prosecution was instituted, Griffin had a conversation with defendant in which defendant `acknowledged that he got my money,' and he would pay it into the treasury if Griffin would give him time; that he would see that Griffin did not lose anything, etc. Griffin testified on cross-examination that there was no contract or agreement on the part of defendant that he would deliver the money to the treasurer; did not know whether defendant appropriated the money to his own use or not; that he had not lost anything by delivering the money to defendant; that, after the conversation with Goodwyn, he understood the money had been paid into the treasury, and a few days after that Goodwyn showed him a receipt for the money. The information was filed September 13, 1899, and the receipt of Goodwyn shows payment of the money to the county treasurer on September 19, 1899. The record does not show that at the time Goodwyn paid the money into the treasury he had been arrested, or was aware of the prosecution."

Appellant's first contention is "that there is a material variance between the allegation in the information and proof on the part of the state, in this: the information charges that about June 1, 1899, defendant, as bailee, embezzled twenty-nine dollars, whereas the proof upon which the state relied for conviction shows two separate transactions, two or three months apart, the first involving nineteen and the second ten dollars." The evidence shows that appellant received the $29 on two occasions, in different amounts, —the first time $19, and the second $10. The court, in his charge, limits the conviction of appellant to the embezzlement of the $10. Appellant very ably insists that this is a variance from the allegation in the information, which alleges that defendant "did take and embezzle twenty-nine dollars"; in other words, the allegation in the information being twenty-nine dollars, that it becomes descriptive of the property so taken, and that therefore proof of a different amount of money would constitute a variance. We do not agree with appellant's contention, but are of opinion that embezzlement, in this respect, stands in the same attitude as an ordinary indictment for theft. A party may be charged with the theft of $50, and, if the evidence shows he stole $5, there is no variance between the allegation and the proof, and a conviction would be sustained.

Appellant's second proposition is: "There were none of the elements of a bailment in either of the transactions in evidence. There was no contract, agreement, or instruction agreed to be carried out in reference to either of them; hence the verdict of the jury is contrary to the law and the evidence." The proof shows that the prosecuting witness, Griffin, handed $19 to Zulch, fees collected by Griffin, with instructions to deliver it to appellant, and for said Zulch to tell appellant that he (appellant) knew what to do with it; that subsequently this money was delivered by Zulch to appellant. Afterwards Griffin met appellant and handed him $10, with the statement that he (appellant) knew what to do with it. Griffin states that subsequent to delivery of the money in both instances he was talking to appellant, and appellant acknowledged "that he got my money." The court charged the jury, among other things, that the state must prove (1) defendant's agency, charging him with the duty of receiving the property; (2) the receipt of the money; (3) its receipt by virtue of his agency; and (4) the fraudulent conversion,— and that, if either of these requirements were wanting, defendant should be acquitted; and, further, that if the jury believed Griffin delivered $10 to defendant to pay to the county treasurer, and that defendant received said...