McClelland v. State

• Decision Date: 29 June 1963
• Docket Number: No. 35837,35837
• Citation: 373 S.W.2d 674
• Parties: Clem McCLELLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 674

373 S.W.2d 674

Clem McCLELLAND, Appellant, v. The STATE of Texas, Appellee.

No. 35837.

Court of Criminal Appeals of Texas.

June 29, 1963.

On Rehearing Dec. 11, 1963.

Second Rehearing Denied Jan. 15, 1964.

J. Edwin Smith, Jack Rawitscher, Smith & Lehmann, Houston, Skelton, Bowmer & Courtney, Byron Skelton, Jim D. Bowmer and Bob Burleson, Temple, for appellant.

Frank Briscoe, Dist. Atty., Houston, Samuel H. Robertson, Jr., Carl E. F. Dally and Gus Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State's Atty., Austin, for the State.

DICE, Commissioner.

The conviction is under Art. 1538, Vernon's Ann.P.C., for conversion of an estate; the punishment, ten years.

Trial was in the 27th Judicial District Court of Bell County upon a change of venue from Harris County.

The indictment returned into Criminal District Court No. 5 of Harris County, omitting the formal parts, charged that:

'* * * on or about the 19th day of December, A.D. 1960, in said County and State, RICHARD H. PUTNEY was the administrator of the estate of Clara L. Currie, deceased, and as such had in his charge the estate, real, personal and mixed, of the said Clara L. Currie, and the said RICHARD H. PUTNEY and CLEM McCLELLAND, acting together as principals, did then and there unlawfully and with intent to defraud the heirs and distributees interested in such estate (the said heirs and distributees being to the Grand Jurors unknown), convert to their own use a part of the property of said estate, to-wit: ten thousand dollars in money, the same being then and there of the value of ten thousand dollars.'

Upon the granting of a severance, appellant, Clem McClelland, was, by order of the court, tried first.

The state's proof shows that appellant was the duly elected, qualified, and acting Judge of the Probate Court of Harris County, Texas.

On September 10, 1960, Mrs. Clara L. Currie died intestate, in Harris County, leaving an estate consisting of both real and personal property of the appraised value of approximately $160,000.

On September 16, 1960, Richard H. Putney, appellant's co-indictee and a practicing attorney in the city of Houston, was appointed temporary administrator of Mrs. Currie's estate. His bond in the sum of $25,000 was approved by appellant.

On October 11, 1960, the administration was by appellant's order made permanent and the administrator's bond fixed at $5,000. On October 17, the said Richard H. Putney qualified as administrator of the estate by taking the oath and executing a bond that was approved by appellant in his official capacity.

Upon the trial, Putney was called as a witness by the state.

He testified that on December 19, 1960, he went to appellant's office and presented to him an application and order which he had prepared for a fee to be paid to him as administrator of the estate. Appellant, at such time, according to the witness, acted upon the application by inserting in the space left blank in the order for the amount of the fee the figure $10,000, stating that it was an unusual case and he (Putney) would need assistance with it. He further testified that appellant stated to him that the fee would be divided between them, 'an even split,' and instructed him to deposit his share to the account of Tierra Grande, Inc., in the Citizens State Bank, of Houston. The witness stated that he proceeded directly from appellant's office to the Citizens State Bank, where he drew a check on the Currie estate for $10,000, of which he deposited $9,500 to his personal account and retained $500 in cash. He related that he then wrote a check for $5,000 on his personal account, which he deposited in the bank to the account of Tierra Grande, Inc., and that he took a duplicate deposit slip for the $5,000 deposit to appellant's office, at which time he did not see him but left the deposit slip on his (appellant's) desk. The witness stated that he furnished appellant with a copy of the application and order for the attorney's fee and that the last time he saw the papers they were on appellant's desk. He also stated that he had no intention of investing in Tierra Grande, Inc., at the time of making the $5,000 deposit and that months later, in June, 1962, he received two stock certificates for 2,500 shares, each, in the corporation, from a man by the name of Bryson Martin. He further stated that at the time appellant instructed him to deposit his share in the Citizens State Bank he wrote on a slip of paper: 'Tierra Grande, Inc., Citizens State Bank.' The slip of paper was introduced in evidence and shown by a handwriting expert to be in appellant's handwriting.

Other evidence and testimony were offered by the state to corroborate the testimony of the accomplice witness Putney.

Appellant did not testify or call any witnesses in his behalf.

Appellant insists that if the evidence be sufficient to corroborate the accomplice, it is insufficient to sustain his conviction as a principal, but, viewed from the state's standpoint, shows him to have been an accomplice to the crime.

With this contention, we agree.

Articles 65-69, V.A.P.C., define who are principals in the commission of an offense.

Article 65, supra, provides that

'All persons are principals who are guilty of acting together in the commission of an offense.'

The succeeding Articles 66-69, supra, prescribe the manner in which one may become a principal in the commission of a crime.

The six definitions prescribed by these articles have been set out by this court in the case of Middleton v. State, 86 Tex.Cr.R. 307, 217 S.W. 1046, as follows:

'(1) When A. actually commits the offense, but B. is present, knowing the unlawful intent, and aids by acts or encourages by words.

'(2) When A. actually commits the offense, but B. keeps watch, so as to prevent the interruption of A.

'(3) When A. is actually executing the unlawful act, and B. engages in procuring aid, arms, or means of any kind to assist while A. executes said unlawful act.

'(4) When A. actually commits the offense, but B., at the time of such commission, is endeavoring to secure the safety or concealment of A., or of A. and B.

'(5) When A. employs an innocent agent, or by indirect means causes the injury, or brings about the commission of the offense.

'(6) When A. advises or agrees to the commission of the offense, and is present when the same is committed, whether he aid or not.'

Of the six ways in which one may be a principal to a crime, two require his presence at the time the crime is committed, and four make him a principal, though physically absent.

Under the statutory definitions of a principal, whether the person be present or not when a crime is committed he must be actually doing something which associates him with the execution of the unlawful act at the very time it is done, to make him a principal. Schwartz v. State, 158 Tex.Cr.R. 171, 246 S.W.2d 174.

An accomplice is defined in Art. 70 of our Penal Code, as follows:

'An accomplice is one who is not present at the commission of an offense, but who, before the act is done, advises, commands or encourages another to commit the offense; or

'Who agrees with the principal offender to aid him in committing the offense, though he may not have given such aid; or,

'Who promises any reward, favor or other inducement, or threatens any injury in order to procure the commission of the offense; or,

'Who prepares arms or aid of any kind, prior to the commission of an offense for the purpose of assisting the principal in the execution of the same.'

In the early case of Cook v. State, 14 Tex.App. 96, this court, in setting out the distinction between an accomplice and a principal, said:

'The acts constituting an accomplice are auxiliaries only, all of which may be and are performed by him anterior and as an inducement to the crime about to be committed (Penal Code, Arts. 79 to 85 inclusive); whilst the principal offender not only may perform some antecedent act in furtherance of the commission of the crime, but when it is actually committed is doing his part of the work assigned him in connection with the plan and furtherance of the common purpose, whether he be present where the main fact is to be accomplished or not.'

In 2 Branch's Ann. P.C. 2d Ed., Sec. 710, at page 8, it is stated:

'If the defendant on trial was not present when the offense was committed and was doing nothing in aid of the common design when the offense was committed, he would not be a principal although the facts support the theory that he was both an accomplice and accessory, or a receiver of stolen property, or either.'

In Hankamer v. State, 142 Tex.Cr.R. 23, 150 S.W.2d 794, it was held, in a prosecution under Art. 1538, supra, that the conversion of funds of an estate was complete the moment the administrator formed the intent to use the money for his private personal use and did so use it.

The facts in the instant case do not show that appellant was present when Putney withdrew the funds from the estate at the bank. Nor is there any proof that at the time Putney withdrew the funds appellant was doing any act in furtherance of their agreement to take the money from the estate.

Under the facts, appellant was not shown to be a principal to the crime of conversion of the estate but was shown to be merely an accomplice thereto.

In this state, an accomplice cannot legally be convicted of a felony as a principal. See: 2 Branch's P.C., Sec. 710, pages 7-9, and cases there cited.

Parnell v. State, 170 Tex.Cr.R., 30, 339 S.W.2d 49, relied upon by the state, is not here controlling, because, as shown in the opinion in the case, the accused was present at the time of the conversion of funds from the corporation.

Middleton v. State, supra, also relied upon by the state, is not here controlling, because in that case the accused was present at the time of the homicide and doing certain acts in furtherance of the conspiracy to kill the deceased.

By formal ...