Leach v. State

• Decision Date: 22 June 1904
• Citation: 81 S.W. 733
• Parties: LEACH v. STATE.
• Court: Texas Court of Criminal Appeals

81 S.W. 733

LEACH v. STATE.

Court of Criminal Appeals of Texas.

June 22, 1904.

Appeal from District Court, Bexar County; Edward Dwyer, Judge.

M. B. Leach was convicted of embezzlement, and he appeals. Reversed.

Brown & Linden and Will A. Morrsis, for appellant. R. C. Walker and Howard Martin, Asst. Atty. Gen., for the State.

DAVIDSON, P. J.

The indictment charged appellant, in the first count, with the embezzlement of $2,500, the property of Mrs. Loraine Dean and the second, with the theft of the same property. The conviction was under the first count, the penalty assessed being 10 years in the penitentiary.

Motion was made to quash the indictment because the venue was not properly alleged. This criticism is hypercritical. It does charge that appellant, "in the county and state aforesaid"—referring to the state of Texas and county of Bexar, previously mentioned —was the agent of Mrs. Loraine Dean, a private person, and that appellant, as such agent, did then and there unlawfully and fraudulently embezzle and fraudulently misapply, etc.

It is contended there is variance between the allegations and the proof on the charge of embezzlement, in that the property or money embezzled was the property of the two children of Mrs. Dean, of whom she was guardian under the order of the court. Embezzlement partakes largely of the qualities and nature of theft, in that it is a peculiar way of converting money obtained by virtue of a trust relation. The fraudulent idea pervades embezzlement, as it does theft. The difference mainly in the two offenses consists in the manner of obtaining possession of the property, and the time the fraudulent intent was conceived. So far as the violation of these two statutes, from a criminal standpoint, the ownership is practically the same. Leonard v. State, 7 Tex. App. 417.

There are quite a number of exceptions taken, and errors urged, growing out of this supposed variance on account of allegation of ownership, in regard to the introduction of testimony, and charge of the court as given, and special instructions refused. We do not care to discuss this phase of the record. We hold ownership properly alleged, and there was no variance.

Evidence was introduced showing that appellant obtained $1,800 from Mrs. Dean at Temple; that, as her agent, he cashed a note at the bank, or at least the note was cashed, and this money passed into his hands as the agent of Mrs. Dean. This property was acquired by her husband before his death. There was also evidence introduced in regard to $1,500 that passed into appellant's hands from Mrs. Dean, which was received on the life insurance policy of her deceased husband. The money alleged to have been embezzled was her children's portion of a sum that was realized in a damage suit against the railroad causing the death of her husband. It is urged as error that the other sums of money not alleged were admitted in evidence. The $1,800 transaction was drawn out by appellant on the cross-examination of Mrs. Dean. The $1,500 transaction was testified by Mrs. Dean without objection until later during the trial, while appellant was on the stand testifying in his behalf, as we understand this record. As presented, there was no error in admitting this evidence. It was the contention of the state that appellant, acting as the agent of Mrs. Dean, received all these moneys to be loaned, and that appellant, after receiving Mrs. Dean's money, informed her that he had loaned it to Mr. Foster, and that he purposed lending the money of the children to a milling company situated in the city of San Antonio. Subsequently he informed her that the money had been so loaned. He did not, in fact, lend any of the money to any of the parties, but, after obtaining it, converted it to his individual use; disposing of it, to a large extent, in leading a fast life, and gambling in futures, and various other ways, all of which was for his own personal use and benefit. That all these transactions were a part and parcel of a scheme, running through all the transactions, to obtain and appropriate her money....