McClelland v. State

• Decision Date: 06 January 1965
• Docket Number: No. 37380,37380
• Parties: Clem McCLELLAND, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 678

389 S.W.2d 678

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

No. 37380.

Court of Criminal Appeals of Texas.

Jan. 6, 1965.

Rehearing Denied March 10, 1965.

Second Motion for Rehearing Denied April 21, 1965.

J. Edwin Smith and Jack J. Rawitscher, Houston, Perry L. Jones, Austin, for appellant.

Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus

J. Zgourides, Asst. Dist. Attys., Houston, Tom Blackwell, Dist. Atty., Austin, and Leon B. Douglas, State's Atty., Austin, for the State.

McDONALD, Presiding Judge.

The appellant was convicted of the offense of Conversion from an Estate, and his penalty was assessed at 10 years confinement in the State Penitentiary.

The appellant, the former Probate Judge of Harris County,Texas, was jointly indicted with Jerry S. O'Brien. A severance having been granted, O'Brien's case was tried in Harris County where he was convicted and the conviction was upheld by this Court on appeal, 376 S.W.2d 833. The appellant was granted a change of venue and was tried before the Honorable Mace B. Thurman, Judge of the 147th District Court, of Travis County, Texas.

Gordon Robert Von Stroh, a nonresident of Texas, while in police custody, committed suicide. After the death of Von Stroh, Captain Cecil Priest, of the Houston Police Department, had a telephone conversation with the appellant McClelland, who was then Probate Judge, to determine what should be done with the property of Von Stroh. As a result of the telephone conversation, the appellant sent Jerry S. O'Brien to the Police Department to take charge and possession of the property of the deceased. McClelland informed Captain Priest that the family of the decedent, who lived out of the state of Texas, would not need to employ an attorney to care for matters of Von Stroh's estate. Jerry S. O'Brien who was appointed as temporary administrator of the decedent's estate, was not a lawyer, and O'Brien was not represented in the estate by an attorney.

The day following the death of Von Stroh, Mr. Russell E. Dahl, the husband of the decedent's sister, came to Houston from Oregon to make funeral arrangements. While in Houston, Dahl visited McClelland's office in the courthouse and was informed by McClelland that Jerry S. O'Brien, who McClelland said was very competent, would be appointed to represent the decedent's estate. Dahl later met O'Brien and gave to him certain personal effects of the deceased which had already been delivered to Dahl. The deceased was buried in Houston. Dahl paid all of the funeral expenses and made a claim against the Von Stroh estate for $1,706.18, which claim was reflected on the inventory filed in the Probate Court. The signature of the appellant on the Court's order, approving the inventory, appraisement and list of claims, appears upon the same sheet of paper below the list of claims in which Dahl's claim is itemized. Mr. Dahl's claim was not paid, and he was not reimbursed for the funeral expenses.

The complete probate records of the deceased's estate were introduced into evidence and revealed that the total assets of the estate, including the proceeds of $3,500.00 from an insurance policy, amounted to $3,618.47. Soon after the assets of the estate had been taken into possession of the temporary administrator, and before most of the claims of the estate had been paid, the appellant McClelland entered an order authorizing Jerry S. O'Brien, a temporary administrator's fee of $2,000.00, and an attorney's fee of $500.00. The inventory, appraisement, and list of claims were made and sworn to by O'Brien on the 2nd day of February, 1960, and were approved by the appellant on the 23rd day of February, 1960. The inventory reflects total assets of the estate in the amount of $102.89. A typed notation of the list of assets reads as follows: 'Numerous Insurance policies all of which had lapsed for nonpayment. TRAVELERS LIFE INS--group policy--which is in controversy but am in hopes of collecting same.' The bank account of the Von Stroh estate in the Citizens State Bank reflects that the proceeds of the insurance policy in excess of $3,500.00 had already been paid and collected for the estate and deposited into the bank account on December 28, 1959. There is nothing in the records of the Probate Court to reflect that the proceeds of the insurance policy had been collected until March 23, 1960, when it was shown in the application of the temporary administrator, and on that day the appellant authorized the temporary administrator's fees and attorney's fees in the sum of $2,500.00.

Records from the bank account of the Von Stroh estate, in the Citizens State Bank, Houston, Texas, reflected that two checks, one in the amount of $2,000.00 and one in the amount of $500.00, were drawn on the account by Jerry S. O'Brien, the temporary administrator of the estate, pursuant to the order signed by McClelland. The account was charged with the two checks on March 31, 1960. The $2,000.00 check, payable to Jerry S. O'Brien, bore the notation 'Temp. Adm. Fees per court order #67899'. The check for $500.00, payable to Jerry S. O'Brien, bore the notation 'Attorney fees per court order #67899'. The balance of the account remaining after these withdrawals was $1,118.47. Subsequent withdrawals to pay legitimate claims of the estate reduced the principal on deposit to $283.65.

Records from the same bank revealed that the check for $2,000.00 was deposited into O'Brien's personal account on March 31, 1960.

Records from O'Brien's bank account show that the day following, on April 1, 1960, a check for $500.00 was drawn by O'Brien and made payable to appellant, Clem McClelland. It bore the marginal notation in typed letters 'Legal services', and an additional handprinted marginal notation 'Insurance matter'.

The $500.00 check drawn on O'Brien's account and made payable to the appellant was shown to have been endorsed by McClelland with his signature, and was deposited into his personal account in the Bank of the Southwest in Houston, Texas. The deposit slip reflecting this deposit bears the transit number of the Citizens State Bank and the notation 'Legal Services'.

During the trial of the case, the state introduced into evidence properly authenticated copies of applications and orders from numerous other estates in which the appellant had, while Probate Judge, awarded attorney's fees to Jerry S. O'Brien. Representative of such cases was the case of Ben Ernest Waite, deceased. The records revealed that the total assets of that estate amounted to $353.06. There were disbursements from the estate by Jerry S. O'Brien as temporary administrator of $10.00 for a bond premium, and $30.00 for court costs. The remaining balance was $313.06. The appellant then entered an order of the Court granting to Jerry S. O'Brien attorney's fees in the amount of $156.53, and temporary administrator's fees in the amount of $156.53. The two payments entirely depleted the assets of the estate. It was further shown that no attorney was actually appointed to represent Jerry S. O'Brien as temporary administrator of that estate.

The State urged the admission of these numerous other transactions in order to show the intent, system, scheme and design of the appellant McClelland, a Probate Judge, as a principal, along with Jerry S. O'Brien, in converting funds from estates under the...