Landis v. State
| Decision Date | 27 November 1918 |
| Docket Number | (No. 4863.) |
| Citation | 214 S.W. 827 |
| Parties | LANDIS v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Tarrant County; George E. Hosey, Judge.
R. L. Landis was convicted of embezzlement, and appeals. Affirmed.
A. J. Power, of Ft. Worth, for appellant.
E. B. Hendricks, Asst. Atty. Gen., for the State.
Appellant was convicted of embezzlement of more than $50, and his punishment assessed at the lowest fixed by law.
The indictment alleged that on or about May 30, 1916, appellant was the agent, clerk, manager, and attorney in fact of the incorporated company Wise-Hearne Shoe Company, and as such he did then and there unlawfully and fraudulently embezzle and fraudulently misapply and convert to his own use, without the consent of said company, $72.30, which was the corporeal personal property of and belonging to said company, and which money had theretofore come into his possession, and was then and there under his care by virtue of said agency, etc.
The state by its evidence, which was wholly uncontradicted and unimpeached, made a clear case against appellant, literally, in substance and effect, proving every allegation in the indictment, and every fact necessary and proper for his conviction. He introduced no evidence and no witness.
We regard many of appellant's contentions as of minor importance, if any, and all of them without any merit. It will not be necessary to take them up severally and discuss them, but what we will have to say will dispose of all of them.
Mr. Short, of the law firm of Capps, Cantey, Hanger & Short of Ft. Worth, testified that he and his firm were the attorneys for said company; that he represented it in the incorporation of it and procured its charter. Thereupon the state's counsel handed to him the charter of said company. The court did not err in permitting Mr. Short to testify: "This is the original charter of the Wise-Hearne Shoe Company granted said company by the state of Texas." The state then at once introduced in evidence the said charter. It is unnecessary to copy it. It is in complete compliance in every way with such charters as granted by the state of Texas under the statutes. It was certified to be a true copy of that filed in the secretary of state's office by D. A. Gregg, chief clerk, acting secretary of state. The statute expressly authorizes the chief clerk to act as secretary of state in the absence of the secretary or his inability from any cause to act. R. S. art. 4319. The court did not err in admitting the charter in evidence. In addition, the testimony of Mr. Short, which was not objected to, was amply sufficient to prove that said company was duly incorporated. Such proof could be made orally. White v. State, 61 Tex. Cr. R. 501, 135 S. W. 562; Zweig v. State, 74 Tex. Cr. R. 314, 171 S. W. 747; 3 Enc. of Ev. p. 604, subd. D; Fleener v. State, 58 Ark. 98, 23 S. W. 1; Com. v. Whitman, 121 Mass. 361; Lowe v. State, 46 Ind. 305; Smith v. State, 34 Tex. Cr. R. 265, 30 S. W. 236.
The facts show that the Florsheim Shoe Company of Chicago, Ill., a corporation, owned said Wise-Hearne Shoe Company; that all of the Florsheim Company's officers lived in Illinois, and none of them in Texas; that they managed, controlled, and operated said Wise-Hearne Shoe Company through their agent, Mr. S. V. Wright. Mr. Wright is shown to have had general supervision, control, and management of said Wise-Hearne Shoe Company; employed and discharged its manager from time to time as he saw fit, and had such control of said company from the time of its organization and when it began business in Ft. Worth; that he put appellant in charge as manager of said business about September, 1915, whose duties as the local manager were to look after the store and do just such things that the manager of an ordinary business would do, and among other things was at the close of each day's business to take the money received and placed in the till out of it, and put it in the safe, and then the next business day to deposit all of that money in a bank in Ft. Worth; that on May 30, 1916, he went to this store to check it up, and so told appellant; that on this occasion he went to the till or cash drawer, counted the money, checked up the sales from the sales slips which were there, then went to the safe and checked up the money therein; that the sales slips called for $201 and some cents more than there was cash; that the sales slips of Saturday, May 27th, totaled $71.30; that the sales slips, representing the cash received on May 27th, had not been entered up by appellant when he checked these matters up on May 30th; that upon finding this state of fact he concluded he had better take a complete inventory of the stock and check up everything, and he so told appellant, and that he, appellant, and the only other clerk in the store, Mr. Crow, then took an inventory and checked up everything; that it took several days to do this, and upon its completion he found a "shortage" by appellant of a total of $1,720.51. A complete itemized statement of all these matters was prepared by Mr. Wright and signed by appellant, duly witnessed, and completely proven up. This signed proven-up statement was introduced in evidence. Among other admissions and statements by appellant in it are these:
And again as follows:
"Merchandise short as shown by inventory
taken May 31st, by R. L. Landis
and S. V. Wright, this shortage having
occurred through merchandise being
sold, no record made of the sale, and
the cash appropriated to his own use
by R. L. Landis, wholesale cost (229
prs.) ................................. $901.16
"An invoice dated 4/7/16, Matchless
Shoe Co., never entered on records
but the goods in stock at the time of
inventory, May 31st, 1916 (28 prs.) ... $77.00"
And again as follows:
"Charge Accounts: The following fictitious charge accounts made out to cover up shortage, and charge accounts collected, but the money used by R. L....
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McCue v. State
...testimony of a witness who has knowledge of the fact. Branch's Annotated Penal Code, § 2610; 3 Enc. of Ev., p. 604; Landis v. State, 85 Tex. Cr. R. 381, 214 S. W. 827; Fleener v. State, 58 Ark. 98, 23 S. W. 1; Meadors v. State, 171 Ark. 705, 285 S. W. 380; Com. v. Whitman, 121 Mass. 361; Lo......
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Kugle v. State
...indictment. On the subject, the following cases are deemed in point. Hamer v. State, 60 Tex. Cr. R. 341, 131 S. W. 813; Landis v. State, 85 Tex. Cr. R. 381, 214 S. W. 827. The state was not bound to prove the exact amount of money alleged in the indictment. See Branch's Ann. Tex. P. C. p. 1......