Hankamer v. State, 21486.

• Decision Date: 19 March 1941
• Docket Number: No. 21486.,21486.
• Citation: 150 S.W.2d 794
• Parties: HANKAMER v. STATE.
• Court: Texas Court of Criminal Appeals

150 S.W.2d 794

HANKAMER v. STATE.

No. 21486.

Court of Criminal Appeals of Texas.

March 19, 1941.

Rehearing Denied May 21, 1941.

Commissioners' Decision.

Appeal from District Court, El Paso County; W. D. Howe, Judge.

Harold M. Hankamer was convicted of conversion of funds of an estate of which he was administrator, and he appeals.

Affirmed.

W. Joe Bryan and Stanley W. Caufield, both of El Paso, for appellant.

Roy D. Jackson, Dist. Atty., and Wm. E. Clayton and Harold S. Long, Asst. Dist. Attys., all of El Paso, and Lloyd W. Davidson, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is the conversion of funds of an estate of which appellant was administrator. His punishment was assessed at confinement in the state penitentiary for a term of three years.

This record shows that on the 15th day of November, 1933, appellant filed an application in the County Court of El Paso County, Texas, for letters of administration upon the estate of Priscilla Hoehne, deceased. Notice of the filing of the application was given in regular form. On the 29th day of November, 1933, appellant was appointed by the Judge of the County Court of said county as administrator of said estate. He duly qualified as such and letters of administration were issued to him. Following his qualification he filed an inventory, appraisement and list of claims showing the property of the estate and the claims against it. At the time that appellant qualified as administrator of the estate, there was deposited in the State National Bank of El Paso, Texas, the sum of $173.92 belonging to said estate. Various sums of money were subsequently collected by him and certain United States Treasury bonds and some notes came into his possession as administrator of said estate, which he converted into money. On the 5th day of January, 1935, appellant filed his first annual account in said estate, which showed that he had in his possession the sum of $4,358.88 in cash belonging to said estate. On June 1, 1936, he filed a report showing that he had cash on hand, belonging to said estate, in the sum of $4,483.82 after the payment of the expenses. On January 28, 1938, he filed a sworn account showing the condition of the estate as follows: Cash on hand $4,465.26. He then filed an account on October 10, 1939, showing that he had received from the Andrews estate on the 12th day of September, 1939, for the use and benefit of the Hoehne estate, of which he was administrator, the sum of $66.55. This annual account, which included the $66.55, showed that appellant had at that time $4,531.81 in his possession which belonged to said estate. For some reason the court declined to approve this last annual account and required the defendant to obtain and file a certificate from the bank showing that he actually had on deposit with the bank to the credit of said estate the amount of money shown in his report. Appellant, who was also administrator of other estates, prepared a certificate showing that he had to the credit of such other estates something over $200. This certificate was written by appellant at the top of a legal-cap sheet of paper and a line was drawn near the bottom of the page for the signature of the Vice-President of the bank. After the Vice-President had signed the certificate at the place indicated, appellant took the certificate to his office, tore it off and then wrote a certificate above the signature of the Vice-President to the effect that there was on deposit with the bank the sum of $4,413.51 belonging to the estate of Priscilla Hoehne, deceased, and filed the same. Thereupon the County Judge approved the account. Thereafter, on or about the 15th of August, 1940, the court approved a claim against the estate of which appellant was administrator and which claim had theretofore been allowed by the defendant, in the sum of $827.19 and ordered it paid. The attorney who represented the claimant demanded payment from the defendant of this approved claim. Appellant tendered him his postdated personal check in payment thereof, which was declined. In explaining the offer of his personal check, appellant stated that the estate funds were in the savings account in the State National Bank of El Paso and that he would have to transfer funds from it in order to make the payment. This led to an investigation of the bank and disclosed that appellant had no funds in the bank but had dissipated the entire estate. After this discovery was made, appellant was called to the bank to explain his representations made to Mr. Bennis, attorney for the claimant, of $827.19. Appellant then and there made a written verified statement in which he admitted that he had converted the funds of said estate to his own personal use and benefit.

Appellant's first complaint is that the court erred in declining to sustain his motion to quash the indictment. Omitting the formal parts, the indictment reads as follows: "* * * that Harold M. Hankamer on or about the 17th day of August One Thousand Nine Hundred and Forty and anterior to the presentment of this indictment, in the County of El Paso and State of Texas, was then and there the administrator of the estate of Mrs. Priscilla Hoehne, deceased, and as such had in his charge the estate, real, personal, and mixed, of the said Mrs. Priscilla Hoehne, deceased, and he did then and there unlawfully and with intent to defraud Margaret P. Anderson, a creditor interested in such estate, and Edward Gilbert, Mae Wolf and Margaret P. Anderson, heirs, interested in such estate, convert to his own use the property of said estate, to-wit: Four thousand four hundred thirteen dollars and fifty-one cents in money, of the value of four thousand four hundred thirteen dollars and fifty-one cents, and which said property had theretofore come into the possession of and was then and there under the care and in charge of the said defendant, Harold M. Hankamer, as administrator of the estate of the said Mrs. Priscilla Hoehne, deceased, against the peace and dignity of the State."

We deem the indictment sufficient in that it follows the language of Article 1538 of the Penal Code. It also follows the form prescribed in Willson's Texas Criminal Forms, 4th Ed., page 356, Form No. 698. It is our opinion that the indictment is sufficient and that the court properly overruled the motion to quash.

Appellant next complains of the action of the trial court in overruling his application for a change of venue. The State contested this application and the court heard evidence thereon. Some twenty-nine witnesses were offered by the defendant on the issue thus formed. The State offered nine witnesses who testified that there was no such prejudice against the defendant as would prevent him from securing a fair and impartial trial. There was further evidence to the effect that there were some 17,000 or 18,000 qualified jurors in the county, and the names of the jurors for this case were drawn from the jury wheel. Moreover, no complaint is made that appellant was forced to take any objectionable juror or that the jury was not obtained from the regular panel for the week.

Where the trial court hears evidence and if from it there arises two conflicting theories, the trial court has the discretion of adopting either. In the absence of an abuse of this discretion, the judgment will not be disturbed on appeal. In our opinion, there is nothing in this record which shows an abuse of the court's discretion in deciding the issue adversely to the appellant's contention. In support of what we have said we refer to the case of Willis v. State, 128 Tex.Cr.R. 504, 81 S.W. 2d 693. We therefore overrule appellant's contention.

Appellant next complains because the trial court overruled his motion for a continuance. We note that the application does not set forth any statutory grounds for the continuance. It is based merely on equitable grounds appealing to the equitable power of the court. No contention is made that any material witness was absent or that any process had been issued for any witness who failed to appear or who had not been served with process. Appellant's only defense was that of limitation. Consequently no reversible error is reflected by the bill.

In the case of Sands v. State, 131 Tex. Cr.R. 177, 97 S.W.2d 190, 192, this court said: "The time allowed by the statute to prepare for trial had expired. The motion names no witnesses and fails to indicate any matter of defense. ...