Johnson v. State

• Citation: 80 S.W. 621
• Parties: JOHNSON v. STATE.
• Decision Date: 27 April 1904
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

80 S.W. 621

JOHNSON v. STATE.

Court of Criminal Appeals of Texas.

April 27, 1904.

Appeal from District Court, Galveston County; J. K. P. Gillaspie, Judge.

Clif Johnson was convicted of embezzlement, and appeals. Reversed.

Geo. Q. McCracken, for appellant. Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

Appellant was convicted of embezzlement under the following state of facts: Everson, the alleged injured party, stated that he was in Galveston on the 21st of December, 1903, and was acquainted with defendant. About four days before Christmas he gave appellant $110 in United States money. The way he came to give the money to appellant was this: "I came in the city, and went to the Sailor's Exchange (I am a sailor), and this defendant was at said place at the time stated. When I went to said Sailor's Exchange, and found defendant there moving around and drinking, and I was going to a room to go to bed, and I had the money on me. Defendant asked me if I had any money on me. Defendant told me he was working there, and I understood he was, and I said, `Yes.' `Well,' he said, `I had better not go to the room with that money on me, and I had better give it to him to keep for me; to save it for me.' This was right there in the barroom. I gave defendant the money to keep for me until the next morning. I went up to the room, went to bed, and went to sleep. The next morning when I waked I went down in the barroom, and did not find defendant there. So I asked the man to unlock the safe and get my money. And he said, `What money? There is no money in here.' I said I gave defendant here $110 to put away and keep for me until morning. Well, he said, defendant did not belong here, and did not have anything to do here. The man I talked to the next morning about the money was the proprietor, and told me that the defendant did not belong there. When defendant told me to give him the money, I gave it to him to keep for me. He said it was too much money to have on me, and he said he would keep it, and give it back to me on the next morning. Before I gave defendant the money, defendant and I had been at the bar, shaking dice and drinking. When defendant asked me to give him the money we were standing in the little room outside the barroom. I just gave defendant the money to keep for me over night. He said he would give it back to me the next morning. I got $30 of the $110 back, which $30 I got back after defendant was arrested." It is contended that this evidence does not show a case of embezzlement. This contention is well taken. Article 861. Pen. Code 1901, provides: "The taking must be wrongful, so that if the property come into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft; but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof and appropriate the money to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete." The facts detailed by prosecuting witness bring this case clearly within the purview and letter of this statute. It is a case of theft. Appellant obtained the money under this statement by a false pretext. He represented himself to be what he was not; made prosecutor understand and believe that he was interested in the house;...