Hartnett v. State

• Decision Date: 26 May 1909
• Parties: HARTNETT v. STATE.
• Court: Texas Court of Criminal Appeals

119 S.W. 855

HARTNETT v. STATE.

Court of Criminal Appeals of Texas.

May 26, 1909.

Appeal from District Court, Jefferson County; L. B. Hightower, Jr., Judge.

Eugene Hartnett was convicted of embezzlement as an officer, and he appeals. Reversed.

F. J. Duff and Robt. A. John, for appellant. F. J. McCord, Asst. Atty. Gen., for the State.

RAMSEY, J.

The charging part of the indictment against appellant is in these words: "That Eugene Hartnett, on or about the 3d day of March, one thousand nine hundred and eight (1908), and anterior to the presentment of this indictment, in the county of Jefferson and state of Texas, Eugene Hartnett was then and there a police officer of the incorporated city of Beaumont, which said city was then and there duly and legally incorporated under the laws of Texas, and was then and there acting and serving as such police officer, and as such police officer and by virtue of his said office there had come into his hands and was in his charge custody, and possession the sum of two hundred and eighty-one dollars and fifty cents, lawful and current money of the United States of America, and of the value of two hundred and eighty-one dollars and fifty cents, a better description of which said money is to the grand jurors unknown, which said money was then and there the property of said incorporated city of Beaumont, and the said Eugene Hartnett did then and there unlawfully and fraudulently take, misapply, and convert to his own use the said money, against the peace and dignity of the state."

The indictment so returned against him and the prosecution which ensued was based on article 103 of our Penal Code of 1895. This article is as follows: "If any officer of any county, city or town in this state, or any clerk or other person employed by such officer, shall fraudulently take, misapply or convert to his own use any money, property or other thing of value, belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall secrete the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be punished by confinement in the penitentiary for a term not less than two nor more than ten years."

Many questions were raised in the court below, which have also been urged in this court, as grounds for reversal of the judgment of conviction. We think the case must be reversed, because under the uncontradicted evidence the conviction cannot stand, for the reason the moneys appropriated must be public funds owned by the city, and must come into the possession of the officer by virtue of his office, and his duties must be defined by law, and cannot be created by custom or usage. The evidence in brief showed that appellant was a policeman in the city of Beaumont, and that he was assigned to the position of jailer, and that the moneys the embezzlement of which is charged herein came into his possession in payment of fines assessed (quite irregularly) against various defendants in the corporation court of Beaumont. There was absolutely no evidence in the record that by law he was authorized to receive such moneys. This authority by law was vested in the city marshal, and he was required to make payments monthly to the city treasurer. While it is possible that appellant might have been indicted and convicted as an employé of the marshal, it is certain that as here charged, where the conviction is sought by reason of misappropriation of funds received by him as an officer and by virtue of his office, under the authorities, a conviction cannot be sustained. This question is, we think, definitely settled beyond serious doubt by the decision of this court in the case of Warswick v. State, 36 Tex. Cr. R. 63, 35 S. W. 386. It was there held in substance that an indictment based upon article 103, Pen. Code 1895, will not lie against a county judge for a misapplication or conversion of county school funds, because such funds cannot come into his hands by virtue of his office, and the law does not authorize a county judge as such officer to receive county school moneys. The suggestion is made, however, by Judge Henderson, that the court should not be understood as holding that the commissioners' court might not empower the county judge, or any other person, to receive money coming to the county for and on behalf of the county; but in such contingency the money or property would come to such person, not by virtue of his official capacity, but on account of his employment or agency.

A quite similar question came before the Supreme Court of Missouri and was decided in the case of State v. Bolin, 110 Mo. 209, 19 S. W. 650. Their statute is somewhat similar, though rather broader than ours. It is as follows: "If any officer, appointed or elected by virtue of the Constitution of this state, or any law thereof, including as well all officers, agents, and servants of incorporated cities and towns, or municipal townships or school districts, as of the state and counties thereof, shall convert to his own use, in any way whatever, or shall use by way of investment in any kind of property or merchandise, or shall make way with or secrete any portion of the public moneys, or any valuable security by him received for safe-keeping, disbursement, transfer, or for any other purpose, or which may be in his possession, or over which he may have the supervision, care, or control, by virtue of his office, agency, or service or under color or pretense thereof, every such officer, agent, or servant shall, upon conviction, be punished by imprisonment in the penitentiary not less than five years." Passing on this statute, the Supreme Court of Missouri say: "No provision of the statute is pointed out, or...