Martin v. State

• Decision Date: 16 May 1923
• Docket Number: (No. 7196.)
• Citation: 254 S.W. 971
• Parties: MARTIN v. STATE.
• Court: Texas Court of Criminal Appeals

254 S.W. 971

MARTIN v. STATE.

(No. 7196.)

Court of Criminal Appeals of Texas.

May 16, 1923.

Rehearing Denied October 17, 1923.

Appeal from District Court, Gregg County; P. O. Beard, Judge.

F. B. Martin was convicted of felony theft, and appeals. Affirmed.

J. N. Campbell and F. B. Martin, both of Longview, for appellant.

W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.

LATTIMORE, J.

Appellant was convicted in the district court of Gregg county of the offense of felony theft, and his punishment fixed at five years in the penitentiary.

Appellant was charged by indictment with the theft of two notes of the alleged value of $500 each. Each of said notes is described in the indictment, because of which fact appellant made a motion to quash the indictment upon the ground of duplicity. Said instrument is not subject to the complaint. It is proper to charge in one count theft of various articles and to describe them therein.

There is but one bill of exceptions in this record, and that complains of the action of the trial court in permitting the owner of the alleged stolen notes to testify that this appellant had collected the money called for by said notes, and had not accounted for same to said owner. The only objection made to said testimony was that it did not bear on the issue involved in the indictment. We regret our inability to agree to this contention. The charge of theft involves the issue of the fraudulent taking of the property. Apparently it was claimed by the appellant in this case that he did take the property, but under a claim of right and by permission of the owner. The fact that after coming into possession of the notes, by means of a false and forged order as claimed by the state, appellant collected the money due on the notes and appropriated it, would be permissible as affecting the question of fraud involved in the charge of theft.

In appellant's motion for new trial it is insisted that the evidence does not support the judgment. We cannot agree to this proposition. The issue was sharply drawn as to whether appellant came into possession of the notes by means of an order signed by the alleged owner of same, or whether said order was in fact forged by appellant. This issue was submitted to the jury in terms so appropriate and apparently satisfactory to appellant as that no exceptions were taken thereto. Appellant claimed that he came into possession of the notes as the legitimate representative of the owner, and that he collected something over $1,000 due thereon, and that he sent it to a man in Oklahoma by the name of Jacstone for some kind of investment or safe-keeping for the alleged owner. He claimed that he had sent to the owner an order upon Jacstone for the money. Evidently the contention of the state was that the claim of appellant, that he sent the money of said owner to Jacstone and that Jacstone had it and had failed to account to the owner for it, was but a flimsy subterfuge, offered for the purpose of excusing appellant for his failure to account to the owner for said property. These matters were before the jury and were for their determination. They seem to have settled all conflicts in the evidence against appellant's contention, and we find ourselves unable to conclude the testimony of appellant's taking and appropriation of the notes to be so unsatisfactory as to not support the verdict.

Finding no error in the record, an affirmance will be ordered.

On Motion for Rehearing.

MORROW, P. J.

The descriptive averment of the indictment reads thus:

"* * * That * * * F. B. Martin did then and there unlawfully and fraudulently take one promissory note for the principal sum of five hundred dollars, executed by B. E. Martin, and L. L. Mackey on the 7th day of February, 1920, and payable to W. O. Martin seven months after date, of the value of five hundred dollars; one promissory note for the principal sum of five hundred dollars, executed by B. E. Martin and L. L. Mackey, on the 7th day of February, 1920, and payable to the order of W. O. Martin, nine months after date, of the value of five hundred dollars."

There is no such lack of certainty in the descriptive averments in the indictment as condemns it. It is obvious that it charges the theft of two notes of even date, of equal amounts, with the same maker and the same payee. If as to one of the notes the indictment was incomplete, that averment might be treated as surplusage. Hickman v. State, 22 Tex. App. 441, 2 S. W. 640; Hammons v. State, 29 Tex. App. 448, 16 S. W. 99; Branch's Ann. Tex. P. C. § 506. There is but one offense embraced in the indictment....