Larkin v. State, 24760

Decision Date31 May 1950
Docket NumberNo. 24760,24760
Citation248 S.W.2d 134,157 Tex.Crim. 284
CourtTexas Court of Criminal Appeals

Scarborough, Yates, Scarborough & Black, Abilene, for appellant.

Jim D. Bowmer (of Saulsbury, Skelton, Everton & Bowmer), Temple, on appellant's second motion for rehearing only.

George P. Blackburn, State's Atty., of Austin, for the State.


This case comes on appeal from the District Court of Runnels County, Texas. The record contains no sentence and, consequently, no final judgment from which an appeal may be taken. This Court is without jurisdiction to consider the matters presented and the appeal is, accordingly, dismissed.

On Appellant's Motion for Rehearing

Since the dismissal of the appeal in this cause, supplemental transcript has been filed showing a nunc pro tunc order entering the sentence in the minutes of the court. Appellant's motion to re-instate the appeal is granted.

The appeal is from a conviction for embezzlement with a sentence of two years in the penitentiary. The facts of this case are most unusual. Appellant was Superintendent of Lake View School District of San Angelo. The board desired to construct a building for their expanding needs and employed an architect to draw the plans. Lumber for the project was scarce at the time. Negotiations were made for the purchase of some government owned surplus property, near Amarillo. This was in the form of buildings, which had to be dismantled and the lumber hauled to San Angelo. The board made a contract with appellant to do this work and haul the lumber to the school grounds. The terms of the contract are not all given and are immaterial. The two questions raised by appellant relate to the sufficiency of the evidence to show an appropriation of the property, and also its value.

The indictment alleges the embezzlement of 'four roof trusses, of lumber construction, each of said trusses being of the value of Forty Dollars and the four of said trusses being of the total value of One Hundred and Sixty Dollars.'

Testifying on the subject of appellant's employment, his duty and authority in the matter, T. D. Hill, Secretary of the school board, told of the transaction and then, on cross-examination by appellant, said that he attended all of the meetings of the school board during the period of time that they were negotiating with Larkin. Among other things, he said: 'I was present on August 10, 1948, when Mr. Probst made a motion, seconded by Mr. Leddy, Mr. Larkin be authorized to use his own judgment in disposing of the war material that had been bought at Amarillo that couldn't be used in our program; at that time there was no limitation put on that motion; as a matter of fact the motion carried unanimously, I believe.'

The purchase of this lumber and the deal with appellant were made before an architect had been employed. The board felt they had bought $22,550.00 worth of property for $1125.50. After the lumber was on the ground an architect was employed and the witness said that the architect told them that, instead of making money on the deal, they had bought a lot of junk. Further testifying, this State's witness said: 'It is true that it will cost us more money to use those old trusses in the Negro school building than if we were not to use them; the architect told us it would cost us more money to use the old trusses and he told us that if we tore the trusses up the lumber we got out of it wouldn't pay for the labor it took to tear them up.' The witness did not know of a market value and did not know what they were worth.

The State offered one wittness who attempted to establish the value of this property. Joe Tharp, a general contractor, said that the eight trusses contained 3,784 feet of lumber and the four involved in this prosecution would have half that much. They were constructed of dimension lumber which, he says, is worth 8cents per foot. This would make the four trusses involved worth $151.28. On cross-examination he said that he offered 8cents per foot for only that part which he could use, and gave the conclusion: 'Offhand I don't know that they could be sold for anything. I know when the lumber is taken down out of that truss that it will have holes in it where the bolts were.'

As we understand his testimony he is valuing the lumber in the trusses after they have been dismantled, but he makes no estimate of the cost of dismantling the same.

The State then presented as a witness George Briley who testified that Mr. Larkin had placed the trusses in question with him for sale. He hauled them from appellant's farm near Abilene to Winters, in Runnels County, and exhibited them for sale, but was unable to find a purchaser for them. On re-direct examination he testified: 'I knew they were Lake View School property; he told me they were at the time.' On re-cross examination he said further: 'He said those trusses belonged to the Lake View School but that he was trying to sell them to get the money for the Lake View School, I imagine.' The witness was not able to find anyone to buy the trusses at any price; was not able to get any kind of a bid for them.

The testimony produced in this case is somewhat involved. Evidently there had been other transactions which might or might not have been admissible on the question of intent to appropriate the trusses involved in this prosecution to his own use and benefit. We have carefully considered all the evidence and are unable to find anything that aids the State's case. We are very doubtful that the evidence is sufficient to support a finding that appellant appropriated the property unlawfully. It does show that he stored a large amount of lumber, including the trusses involved, in a barn on his farm near Abilene. He later had these trusses hauled to Winters and had other lumber hauled into the City of Abilene and either sold or offered it for sale. Some kind of litigation has taken place and a settlement was made whereby appellant paid a sum of money to the school board.

The authority given him, as stated by the secretary of the school board, would not be sufficient to authorize him to use the lumber for his own benefit. The school board had no power to give the property to him if they had attempted to do so. We think it was sufficient to authorize him to store and dispose of the lumber in whatever place or whatever manner he saw fit, so long as he was doing so for the benefit of the school board.

The evidence on the value of the property is insufficient to show what its value was. According to some of the quoted testimony, the trusses had no value as such. Proof of the value of the lumber was insufficient to give a basis for the finding that they were worth more than $50.00, because there is no evidence as to the cost of taking the trusses apart. The State has the burden of proving the value, but they have not offered any evidence to contradict the testimony brought out by the defendant--that the trusses alleged to have been embezzled were worthless.

For this, the judgment of the trial court will be reversed and the cause remanded.

On State's Motion for Rehearing


This case was originally reversed for the reason that, as this Court then viewed the evidence, the State had failed to prove the value of the trusses embezzled, and the opinion expressed some doubt as to proof of appropriation.

This Court, as now constituted, has again reviewed the record. We are now of the opinion that the State sufficiently proved the value of the trusses alleged to have been embezzled.

The State was entitled to establish the allegations of the indictment as to the value of the trusses by showing (1) their market value at the time and place of the appropriation, or (2) if they had no market value, the amount it would cost to replace them. See Givens v. State, 143 Tex.Cr.R. 277, 158 S.W.2d 535; Cunningham v. State, 90 Tex.Cr.R. 500, 236 S.W. 89.

We quote from the testimony of Joe Tharp, a general contractor in the area of the alleged offense, as follows:

'I was present and checked the lumber that was hauled from Mr. Larkin's farm to San Angelo some time in July of this year. * * * I had occasion to go to Winters and help remove eight of these trusses; I took the measurements of those trusses; there's 3,784 feet of lumber in those 8 trusses: * * * I know that that lumber is worth 8 cents a foot. I was buying lumber every day and every week and know that it was worth that much. At eight cents the eight trusses would be worth $302.56; half of that would be $151.28; that was the market price at that time. * * * The type of lumber that was in those trusses at that time would have cost from 12 to 14 cents a foot.'

On cross-examination, the witness said, 'Each of those trusses would be worth about $40.00.' The indictment charged the embezzlement of four roof trusses of the value of $40.00 each and of the total value of $160.00.

There appears in the record testimony which disputes Tharp's testimony as to the value of the trusses; some testimony denies that the trusses had any value whatever. This variance in the testimony on this point made an issue which it was for the trial jury to resolve.

We feel that sufficient proof of value was made by Tharp's testimony, viewed in the light of the manner in which this matter is presented to this Court for review. If this manner of proving value did not meet with the approbation of appellant, it was incumbent upon him to voice his objection at the time of the introduction of the testimony, and then to bring the matter up to this Court for review in a bill of exception. This was not done.

The applicable rule is that even an erroneous method of proving value is not ground for reversal unless excepted to and the error presented...

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  • Turner v. State
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    • Texas Court of Criminal Appeals
    • 18 Octubre 1972 voice his objection at the time of the introduction of the testimony. Tinsley v. State, Tex.Cr.App., 461 S.W.2d 605; Larkin v. State, 157 Tex.Cr.R. 284, 248 S.W.2d 134; Ward v. State, Tex.Cr.App., 446 S.W.2d 304. In Thomas v. State, 85 Tex.Cr.R. 246, 211 S.W. 453, it was said, 'We think ......
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    • 6 Febrero 1991
    ...v. State, 90 Tex.Crim. 500, 236 S.W. 89 (1921); Childress v. State, 92 Tex.Crim. 215, 241 S.W. 1029 (1922); Larkin v. State, 157 Tex.Crim. 284, 248 S.W.2d 134 (1952); V.T.C.A. Penal Code, § 31.08, Practice Commentary; see also Sullivan v. State, 701 S.W.2d 905 (Tex.Cr.App.1986). Methods of ......
  • Smith v. State, 43981
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    • 7 Julio 1971
    ...305, and cases cited. See also Powell v. State, 82 Crim. 163, 198 S.W. 317; Burke v. State, 127 Crim. 160, 75 S.W.2d 94; Larkin v. State, 157 Crim. 284, 248 S.W.2d 134.' We deem the evidence sufficient to sustain the conviction. We further note that the appellant, testifying for the first t......
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    • Texas Court of Criminal Appeals
    • 16 Diciembre 1970
    ...of the defendant, it was incumbent upon him to voice his objection at the time of the introduction of the testimony. Larkin v. State,157 Tex.Cr.R. 284, 248 S.W.2d 134; Morris v. State, Tex.Cr.App., 368 S.W.2d 615; Ward v. State, Tex.Cr.App., 446 S.W.2d 304. No such objection was made nor wa......
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