Hamman v. State

• Citation: 166 Tex.Crim. 349,314 S.W.2d 301
• Decision Date: 11 June 1958
• Docket Number: No. 29792,29792
• Parties: G. B. HAMMAN, Appellant, v. The STATE of Texas, Appellee.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

Page 301

314 S.W.2d 301

166 Tex.Crim. 349

G. B. HAMMAN, Appellant, v. The STATE of Texas, Appellee.

No. 29792.

Court of Criminal Appeals of Texas.

June 11, 1958.

Fowler Roberts, Dallas, for appellant.

Henry Wade, Dist. Atty., William F. Alexander and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The offense is embezzlement; the punishment, ten years.

The second count of the indictment, upon which the case was submitted to the jury, alleged that appellant 'was an officer, agent, servant and employee of Physicians Life and Accident Insurance Company of America' and that he embezzled, misapplied and converted to his own use $225,000 belonging to said company, which was under his care by virtue of such employment as such officer, agent, servant and employee.

The court, in his charge, required the jury to find that appellant was the agent of said company; that he received the money belonging to said company in the course of his employment; and that he embezzled, misapplied or converted it to his own use, without the consent of his principal or employer.

The facts are thus stated in the State's brief:

'In 1955, Physicians Investment Corporation was incorporated to be the parent company of Physicians Life and Accident Insurance Company of American. The principal incorporators and promoters were appellant Hamman, Parnell, McGhee, and Valentine. These promoters executed notes, secured by deeds of trust on real estate, individually, totaling $225,000.00 These notes and deeds of trust were assigned to the Physicians Investment Corporation. Then Physicians Investment Corporation borrowed $225,000.00 from the Empire State Bank of Dallas, Texas, using the notes as security for the loan. The $225,000.00 borrowed fom the Empire Bank was deposited to the account of Physicians Life Company as part of its original capital. As soon as the Physicians Life Company was chartered with the $225,000.00, public sale of stock in said Life Company was commenced, with Physicians Investment Company acting as its agent and broker for such sales. On incorporation, Physicians Life Company furnished the money to pay the $225,000.00 note of Physicians Investment Company at Empire Bank, and the notes and deeds of trust securing the Investment Company loan were assigned to the Life Company. Shortly thereafter the Life Company promoters were advised that a Life Company could not hold the notes of its own directors, and the notes were assigned out to two banks; First National Bank of Dallas, Texas, paying for one $75,000.00 note of Parnell and the Mercantile National Bank taking the other $150,000.00 of notes, including the $50,000.00 note of appellant Hamman.'

During the year 1955 stock was sold at $11 per share under prospectus representing that the net proceeds would be used to fulfill an expanded business program and other stock at $14 per share, it being represented that such stock was original common stock of said company.

It was the State's theory, supported by the evidence, that: 'Before the end of 1955, appellant and his co-promoters caused the Life Company to transfer sufficient funds from the sale of its primary stock to the public to the Physicians Investment Company, which Investment Company used the money to pay off the personal notes, of the promoters, including appellant Hamman. These notes were extingushed by the payment and returned to the makers. To account for the transferal out of the Life Company funds to pay the promoters' notes, the stock record books were altered and back dated to made it appear that the primary capital stock sold to the public was mistakenly entered as such, but was secondary stock belonging to the promoters which had been sold to the public, and the proceeds of such stock sales credited to the individual promoter, including appellant Hamman. In other words, the stock records were altered to make it appear that the certificate stubs and records so altered had been in reality secondary sales of personally held secondary stock belonging to the promoters, whereas in truth and in fact the stock sold was primary capital stock belonging to the Life Company and had been sold to the public on the representation that it was primary stock sold for the purpose of increasing the capital structure of the Life Company.

'From incorporation to the end of the period of the transactions complained of in the indictment appellant G. B. Hamman was an officer; to-wit: Secretary of the Life Company, a director, and an employee drawing a salary from said company. The money used to pay Hamman's personal note was money belonging to the victim Life Company. Appellant Hamman had the care, custody, possession, and control of said money at the time it was used to pay his personal note.

'Appellant was an officer, agent, servant, and employee of the Physicians Life Company. Victim company was a corporation incorporated under the laws of the State of Texas. The money charged to have been embezzled was from funds received from the sale of primary capital stock of the said Life Company, which funds belonged to the Life Company. Said funds were taken by appellant without the consent of the Life Company. The money so embezzled had come into possession of appellant as officer, agent, servant, and employee of the said victim Life Company.'

Appellant filed application for suspended sentence and testified. The State's brief correctly stating: 'The appellant testified in his own behalf, admitting all acts charged in the indictment and proved by the State, but claimed lack of any fraudulent, unlawful, or wrongful intent in connection with any of the facts proved by the State.'

Appellant's theory differed from that of the state only in that he disclaimed any fraudulent intent and contended that he did not want to sell his stock and dis so only because the 50,000 shares of original stock offered by prospectus was oversubscribed and the corporation did not care to sell more of its stock, but did desire to retire the notes of appellant and the other directors with proceeds from the sale of a part of their stock. He testified that the books were altered so as to correctly reflect what happened, and that the entire transaction was conducted under advice of counsel and certified public accountants.

Appellant excepted to the court's charge for failure to instruct the jury affirmatively on his defense of good faith; lack of fraudulent intent; belief in good faith that he and his co-defendants were authorized to deal with the money involved as was done; his good faith and belief that his actions were legal, and his defense that if he did anything wrong it was the result of his being misled by the advice of the attorneys and certified public accountants.

None of these defensive matters were submitted to the jury, the only submission from the standpoint of the defendant being the converse of the submission from the State's standpoint: 'Unless you so find, or if you have a reasonable doubt thereof, you will acquit the defendant and say by your verdict 'not guilty'.'

The court erred in omitting to affirmatively submit appellant's defensive theory to the jury.

On re-direct examination appellant was asked: 'Mr. Hamman, in all your dealings with Physicians Life and Accident Insurance Company of America, tell the court and jury whether you ever intentionally took any money, or knowingly took any money belonging to that company?'

The State's objection, that it was self-serving, called for an opinion and was not based on any facts, was sustained.

We are aware of no case where a defendant has been denied the right to answer such a question over such an objection The ruling was erroneous and was prejudicial to the rights of the defendant.

A number of character witnesses were called by appellant who, having testified to their long acquaintance with him and to their...