Himmelfarb v. State

• Decision Date: 03 February 1915
• Docket Number: (No. 3415.)
• Citation: 174 S.W. 586
• Parties: HIMMELFARB v. STATE.
• Court: Texas Court of Criminal Appeals

174 S.W. 586

HIMMELFARB v. STATE.

(No. 3415.)

Court of Criminal Appeals of Texas.

February 3, 1915.

Rehearing Denied March 3, 1915.

Appeal from District Court, Galveston County; Robt. G. Street, Judge.

L. Himmelfarb was convicted of theft, and he appeals. Affirmed.

George G. Clough and King & Hughes, all of Galveston, for appellant. C. H. Theobald, Co. Atty., of Galveston, and C. C. McDonald, Asst. Atty. Gen., for the State.

PRENDERGAST, P. J.

Appellant was convicted of the theft of money delivered to him by M. G. Hubert by virtue of a contract of bailment.

1. The indictment follows substantially the form therefor prescribed by Judge White in section 1501 of his Annotated Penal Code. It alleged that on or about January 20, 1914, said Hubert delivered $300 to him to buy certain barroom fixtures and whisky with which he bound himself and agreed to purchase for Hubert. It was unnecessary for the indictment to allege either the kind, character, quality, name, etc., of the fixtures, or the quantity of whisky, and the court did not err in overruling appellant's motion to quash the indictment on that ground.

2. It is unnecessary to give any extended statement of the evidence. It was amply sufficient to establish, and for the jury to believe therefrom, that said Hubert, a negro and a stranger, arrived in Galveston, with his wife, on December 24, 1913. He had formerly lived in Trinity county and had there made and then had about $1,500 in money. Part of it he left on deposit with the bank in Trinity county and took another portion with him, or afterwards transferred part of it, to the Hutchings-Sealy & Co. Bank in Galveston. Hubert was in bad health and went to Galveston to be treated by a physician there. On January 5, 1914, he saw carpenters working on a building at the corner of Twenty-Eighth and Church streets in Galveston. He learned, upon inquiry, from them that appellant owned or controlled said building. Appellant was pointed out, and he introduced himself to him. He told appellant that he was a stranger from Groveton in Trinity county, and there where he could be attended by his doctor, and that he expected to open a restaurant or saloon. Appellant asked him if he had the money and upon his telling him he had, appellant told him that a saloon would be the thing, and agreed to rent him said house for $100 per month for a saloon. Appellant asked him how much money he had, and he told him enough to open a saloon, without telling him the exact amount. Thereupon appellant made an engagement with him to meet him that night at his house to go over the matter, which he did. Appellant then figured for him about how much it would take to open up a saloon, buy the fixtures, the liquor and other stock, procure the license, etc., and figured that it would take $1,200 to $1,500; that it would take $300 or $400 to buy the bar fixtures, $300 for liquor, $750 for the license, etc. After going over this matter, appellant engaged to meet him the next day to arrange for the business. They did meet the next day. Hubert informed appellant he had some of his money in said bank. He took Hubert in his buggy down to that bank, waited out in the buggy while Hubert went into the bank, drew a check and got $375 cash, having some money, in addition, with him. As soon as he got this money and appellant saw it, he engaged to meet him at the interurban train and go to Houston with him that evening to buy the bar fixtures, Hubert taking the money along with him. After they got to Houston appellant took him to a negro rooming house, procured a room, they went therein, and Hubert then delivered to him $380 cash with which he was to buy, and agreed to buy therewith, the said bar fixtures. Appellant swore he took that money back to Galveston with him when he returned the next day. Hubert paid their expenses to Houston and return. Hubert returned from Houston to Galveston that night. On his return appellant claimed to Hubert that he had bought said bar fixtures while in Houston. He swore on this trial that he did not then, or at any other time, buy any bar fixtures whatever with that money, or any other that Hubert afterwards delivered to him. Appellant and Hubert met in Galveston from day to day thereafter for weeks, and discussed the procuring of the necessary fixtures, furniture, stock, etc., for the opening and operation of said saloon. On January 14, 1914, appellant again took Hubert to said bank, and had Hubert to draw from said bank and turn over to him $600, with which he said he would procure the license to run said saloon. Appellant swore that he applied to Mr. Cheesborough, the postmaster, some three or four times to get said license. Mr. Cheesborough swore that he never applied to him at any time for that purpose. Appellant on the trial swore that he never got any license from Mr. Cheesborough or anybody else with that money, or any other, of Hubert's and got no such license at all. On January 20th appellant had Hubert to again get from said bank in Galveston $300 in cash and turn it over to him, with which he said he would buy the stock of whisky for said saloon. He never bought a drop of whisky for Hubert with that money or any other money that Hubert turned over to him. He himself swore on this trial that he never bought any liquor therewith. Later he procured from Hubert another $100 in cash, with which he said he would at once buy some cigar show cases to use in said saloon business. Still a little later he procured from Hubert another $50 in money, with which he said he would buy the cigars for said saloon business. At the time he procured the said $100 Hubert told him that he had about stripped him of money. Appellant told him when he got the $50 for the cigars that he wanted $100 for that purpose, but Hubert claimed that he only let him have for that purpose at the time $50, and that he had to get that $50 from his wife. Doubtless it thereupon appeared to appellant that he had gotten all of the money from Hubert that Hubert was going to let him have, or all that he did have. Appellant, by his own testimony, never used one cent or any other amount of all the money that Hubert turned over to him, under the bailments above specified, for procuring any of the articles for which he got the money from Hubert. He swore on this trial in effect that he used some of the money to pay his debts and for other purposes and to buy a car load of secondhand pool tables. Appellant admitted that he got $1,250 of Hubert's money for the purposes above stated, but denied that Hubert paid him the last two items of $100 and $50, respectively. From time to time, soon after appellant returned from Houston, just after January 6, 1914, he took Hubert to the railroad freight office in Galveston and inquired of the agent for a car load of bar fixtures which he told Hubert he had shipped to him (appellant) from Houston, representing from day to day and time to time to Hubert that he had bought said fixtures in Houston on the occasion they went there, and expected them at the railroad depot in Galveston. As stated, he swore on the stand that he never bought any fixtures at Houston or elsewhere with Hubert's money or any part of it, or any such fixtures at all. The state produced, identified, and introduced in evidence a bill of lading to a concern in Houston for a car load of secondhand pool tables shipped in the name of that concern to Galveston to their order and to notify appellant. Appellant swore that he had to go to the bank in Galveston to get that bill of lading, and at the time, in order to get it, he had to pay the bank for said bill of lading, which he did, and he at once took that bill of lading to the railroad depot at Galveston and got the car load of secondhand pool tables which he paid for at that time out of Hubert's money, as the jury was authorized to find from the testimony. He said he paid $400 for this car of pool tables. After he had gotten all of Hubert's money for the purposes specified, Hubert was after him from day to day to fix and open up said saloon, and appellant was delaying him from time to time until he got all of his money, and then it dawned upon Hubert, the old negro, that appellant was not going to fix up any saloon whatever, and he never did. He thereupon demanded his money back. The appellant, as the jury were authorized to believe from the testimony, in the form of a bill of sale to Hubert, gave him a mortgage on another old secondhand set of pool tables for an expressed consideration of $1,250, which he testified he had been himself running at a certain location in Galveston for many years. And he also, nearly two months after executing said mortgage, had Hubert to execute to him a lease to said old pool tables for a year, at a monthly rental of $5 a month. All of this was for the purpose, as the jury were clearly authorized and justified to believe, of attempting to manufacture a defense and cover up the crimes he had committed.

3. In addition to the district attorney representing the state, other attorneys also were employed to prosecute. When the case went to trial one of the attorneys for the state desired to make, and did make, in proper time, a preliminary statement of what the state expected to prove. Appellant objected to this. Clearly the state had the right, under the statute and decisions to make such statement. Article 717, subdiv. 3, C. C. P.; House v. State, 171 S. W. 207.

4. Appellant's bills Nos. 2, 3, 4, and 8, in very meager statements, complain of the argument of the prosecuting attorneys. In No. 2 the language complained of is this:

"Cast your mind back thousands of years to another contract made by one of defendant's kind with one of your kind, and he at that time demanded his pound of flesh."

In the third, the language complained of is this:

"That the defendant at the very time that he got the first $380 in Harris county, then and there conceived the idea of converting all the...