Jackson v. State

• Decision Date: 12 November 1902
• Parties: JACKSON v. STATE.<SMALL><SUP>*</SUP></SMALL>
• Court: Texas Court of Criminal Appeals

70 S.W. 760

JACKSON v. STATE.^*

Court of Criminal Appeals of Texas.

November 12, 1902.

Appeal from district court, Bexar county; John H. Clark, Judge.

A. D. Jackson was convicted of embezzlement, and appeals. Affirmed.

Onion & Henry, for appellant. Robt. A. John, Asst. Atty. Gen., for the State.

HENDERSON, J.

Appellant was convicted of embezzlement, and his punishment assessed at confinement in the penitentiary for a term of five years; hence this appeal.

The testimony on the part of the state shows that appellant, who was a negro, induced his aunt to sell a small place she owned in Gonzales county for $1,400; that this money was turned over to him by his aunt, prosecutrix, and that he failed to account for the same. Appellant's defense was based on two contentions. He claimed that under a power of attorney which prosecutrix executed in his favor he was authorized to use her funds as he saw fit, and he invested the same in some sort of an insurance company at San Antonio, called the "National Protective Association"; that, although this investment was in his own name, it was for the benefit of the prosecutrix; that, if said funds were lost, it was her loss. He also claimed that the money was borrowed by him from her, and that he gave a note for the same, which was a sufficient answer to the charge of embezzlement.

Appellant made a motion to quash the indictment. The indictment is in two counts, and the conviction was under the first count. We have examined said count, and find no error in the action of the court overruling the same.

Bills Nos. 1 and 2 relate to objections urged by defendant to certain testimony adduced from the prosecutrix, Mary Ann Read. We do not believe the objections are well taken to this evidence; but, if so, the evidence is of an immaterial character, and it does not constitute reversible error. Nor does bill No. 3 point out any error. The certificate of the judge thereto suggests that the remark of state's counsel was not heard by the jury, and that no instruction was asked to the effect that the jury could not consider said remark. In the absence of such requested instruction, the remark attributed to the state's counsel would not constitute error.

The fourth bill of exceptions, as qualified by the judge, shows that as soon as it was called to his attention that the county attorney was improperly alluding to appellant as this "fellow" the court instructed him thenceforth to refer to him by name or as defendant.

With reference to the fifth bill, we think it was competent for the state to show by Mary Ann Read that she called at the bank to see if she could get her money, and that it was refused her. But, even if it was not competent for the state to show that the cashier said to her, to wit, when she called for her money, that he fold her it was all drawn out, we do not understand that this matter was controverted. It appears to have been conceded. At any rate, it was abundantly proven that all the funds appellant may have deposited in said bank of Wood & Sons had been drawn out by appellant.

We believe it was competent for the state to show that appellant said he was going to sell Mary Ann Read's land, and then take care of her. So far as the sale of the land was concerned, that was not controverted. That he said he was going to take care of the prosecutrix, his aunt, was certainly not calculated to injure him. In this connection we also understand that appellant objected to any testimony regarding the sale of the land and appellant's participation therein. It occurs to us that this is a part of the res gestæ of the offense charged against appellant. It shows how appellant got hold of the money of the prosecutrix, and because, forsooth, the testimony may tend to show that he overreached his aged aunt in getting the money, would afford no reason for its rejection. It would tend also to show his agency in the matter, both in the obtention and custody of the funds derived from the land. We think all this testimony was admissible.

When A. B. Story, a witness for the state, was on the stand, he was asked the question by the state, to wit: "At the time you drew the papers on the defendant, had he made any claim about the note?" He replied "I don't remember the exact language about it. He seemed very much surprised about the note." This was objected to on the ground that it was not the statement of any language used by appellant, but the statement of the opinion of the witness as to the appearance of appellant at the time the note was mentioned to him. The judge's qualification to the bill states: "The objection made was that the question was leading, and witness then stated that I brought the note in the conversation. The district attorney then asked witness, `What did he say then?' to which witness replied: `I don't remember the exact language about it. He seemed very much surprised about the note.' Defendant's counsel then stated he objected to the answer. The objection was overruled, and defendant's counsel excepted; and that this was all that was done or said." It appears to us that appellant's counsel should have stated some reason for his objection to the answer more than is signified by the explanation of the judge. Concede, however, that the bill is correct as stated originally,—that is, that the answer did not state a fact, but gave an opinion of the witness as to the appearance of appellant when the note was mentioned,—still we think, under the authorities, this testimony was admissible, under the rule which authorizes in certain character of cases an opinion or a shorthand rendering of the facts. Miller v. State, 18 Tex. App. 232; Powers v. State, 23 Tex. App. 42, 5 S. W. 153; Meyers v. State, 37 Tex. Cr. R. 208, 39 S. W. 111; Bennett v. State, 39 Tex. Cr. R. 639, 48 S. W. 61; Spangler v. State, 41 Tex. Cr. R. 424, 55 S. W. 326.

Bill No. 8 does not seem to have been allowed by the judge, as he certifies that he had no knowledge of the same, and found no reference to the same in the stenographer's notes. We would suggest, however, that in disallowing or passing on bills the judge should distinctly allow or disallow the same. However, the matter presented in said bill is of a trivial character. Even if the question was improper, the answer elicited amounted to nothing, as the witness stated that he did not remember. The same remarks here made with reference to this bill also apply to the subsequent bill, No. 9.

Looking at bills 10 and 11, which appear to have been considered together by the court, they appear to be somewhat complicated, and it is rather difficult to determine from the qualifications whether the same were allowed or disallowed. Looking to the qualification to bill No. 10, we are referred for the answer of the witness to bill No. 11, and, coming to the qualification to bill No. 11, it would seem that the objection was to the question propounded, and this was because the question was leading. If we look to this qualification, the question was not of a leading character. However, concede that the objection was made and the answer elicited, and that some sufficient ground of objection was stated at the time, we think this answer as given was relevant and competent testimony in this case. This witness answered as follows: That appellant, on the occasion inquired about, went on to say: "Aunt Ann thinks she can put me to trouble through the court, but it was only a breach of trust. She trusted me with the money, and she can't have anything done with me about the money." This was a statement of appellant, made to a witness while he was not under arrest, which had a direct bearing on the case; that is, he acknowledged the receipt of the money, and claimed that his conduct only involved a breach of trust. Of course, a mere breach of trust would not inculpate appellant; but the statement showed the receipt of the money, and that appellant had spent the same. His claim that it was a mere breach of trust, if true, would exonerate him, and it would be incumbent on the state to contradict him as to this.

As to the matters involved in bill No. 12, we think it was competent for appellant to show a bad state of feeling or some animus on the witness' part toward appellant, but it does occur to us that the question asked in regard to a proposed sale of property owned by the witness' father to appellant for his aunt was too far-fetched as a basis to show a state of ill feeling between the parties. If the witness had been asked the question as to a state of ill feeling between himself and appellant, and he had denied such state of feeling, then it would have been competent to have refreshed his recollection by referring to the incident inquired about.

Appellant objected to some of the charges of the court. Among other things, the court gave the following instruction: "If the defendant, upon agreement with Mary Ann Read, on or about the 15th day of August, 1901, executed to her his note for money received by him from her, then you cannot find the defendant guilty, unless you believe from the evidence beyond a reasonable doubt that before that time the defendant had fraudulently embezzled, misapplied, and converted to his own use said money, or a portion thereof, under the rules hereinbefore given...