Metzger v. State

• Decision Date: 24 June 1959
• Docket Number: No. 30745,30745
• Parties: Otis C. METZGER, Appellant, v. STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 396

325 S.W.2d 396

168 Tex.Crim. 268

Otis C. METZGER, Appellant, v. STATE of Texas, Appellee.

No. 30745.

Court of Criminal Appeals of Texas.

June 24, 1959.

Borden & Hand, Weatherford, for appellant.

Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for felony theft by false pretext; the punishment, five years.

The single count indictment was in the ordinary form for felony theft, it being charged therein that appellant on or about May 16, 1956, fraudulently took from the possession of Malcolm A. Maupin $13,500 in money.

In the fall of 1955, appellant, Otis C. Metzger, approached Malcolm A. Maupin, the manager of the Chamber of Commerce of the City of Weatherford, and told him that he was interested in building a cement plant in that area. After several conversations between them appellant said he was going to California for about six months and would contact Maupin when he returned. Upon his return in May, 1956, appellant told Maupin that he had definitely chosen Weatherford as the site for a cement plant.

Maupin informed appellant that the Weatherford Industrial Plan, a corporation (hereinafter referred to as the W.I.P.), was created for the purpose of attracting new industries and arranged for a conference between them. Appellant appeared before the Board of Directors of the W.I.P., explained to them among other things, the raw material available and the market survey for a cement plant in that vicinity; and that he had an option to purchase a plant in West Virginia for $125,000, and he asked that they raise said sum to purchase the plant. At their next meeting they informed appellant that they could not raise the $125,000. Appellant then told them that if they would raise $42,500, he would put $82,500 with it to complete the purchase price. This proposal was accepted.

Appellant, Otis C. Metzger, as party of the first part, and the W.I.P., by its President, James Doss, and attested to by its Secretary, Wren H. Hart, party of the second part, executed a written contract on May 11, 1956, providing for the purchase, removal and erection in Weatherford of the West Virginia plant.

The contract provided for an inspection by the W.I.P. of the machinery and equipment in West Virginia.

Maupin testified that one of the two persons appointed to inspect the cement plant in West Virginia could not go, so he 'was directed to take that persons place * * * about fifteen minutes before we left * * * I received my instructions from one of the officers * * * Mr. Borden Seaberry * * * I believe he was the Vice president.' (Seaberry did not testify.)

The testimony of the President and Treasurer of the W.I.P. shows that Maupin was sent to West Virginia as the agent and representative of the W.I.P. with instructions to inspect the cement plant on which appellant had an option, and in the event he found that the plant existed for him to deliver to appellant a check on the W.I.P. for $42,500.

The W.I.P. also sent with Maupin, Harold Martsolf, who was to determine the condition of the plant.

Maupin, Martsolf, R. C. Jones (the owner of the plant), Vic Gillespie (appellant's engineer), and appellant were present at the time of and during the inspection.

Following the inspection, appellant suggested that Maupin make the check for $42,500 payable to him and R. C. Jones.

On May 16, 1956, Maupin wrote a check payable to appellant and Jones in the sum of $42,500 on the W.I.P., by him, on the Merchants and Farmers State Bank, Weatherford, Texas, and delivered it to the appellant. The drawee bank would not pay the check unless there was attached a bill of sale which included an itemized list of the machinery and equipment in the plant placing the title in W.I.P. Appellant remained in Ashland to complete said instruments and Maupin and Martsolf returned by plane to Weatherford on May 16.

The minutes of the W.I.P., dated May 17, as shown in the record, recite that a special meeting was called and held that day for the purpose of receiving a report from Maupin and Martsolf on their inspection of the cement plant, and also to receive a report on the amount of money raised toward the $42,500 goal. The inspection report was made, and Maupin stated that a check had been 'turned over to O. C. Metzger (appellant) for deliverance to R. C. Jones upon completion of said conditions which would appear in the bill of sale.' The treasurer reported that $21,500 had actually been received. 'The group was urged to make their contacts and take the responsibility of having all additional pledges turned in immediately.'

It is shown that the investors in the project also attended the special meeting.

On May 18, 1956, appellant and Jones endorsed the check to which the bill of sale was attached and placed it with a bank in Ashland, Kentucky, for collection. Ashland is located across the state line about eight miles from the cement plant in West Virginia.

The Merchants and Farmers Bank paid the $42,500 check, charging it as a 'cash item' on its books, on May 24, by cashier's check at which time the W.I.P. had $30,500 on deposit, with arrangements made for the deficit.

On June 21, the $42,500 check was actually charged against the account of W.I.P., after it had borrowed $8,600 from said bank.

On May 29, appellant and Jones instructed the cashier at the Ashland bank to disburse the $42,500 by issuing three $4,500 cashier's checks, totaling $13,500, payable to the appellant, with the remaining $29,000 deposited in favor of Jones.

Jones testifed that he sold the cement plant to the appellant for $25,000 and a condenser to go with it for $4,000; and neither the appellant nor any other person paid him an additional $82,500 for the plant and condenser.

The testimony of all the witnesses connected with the W.I.P. shows that the appellant was not to get any part of the $42,500.

After the $42,500 was paid, appellant, when asked about it in Weatherford, at first denied getting any of it, but later admitted he received $7,000.

The evidence shows that the W.I.P. had all the responsibility as well as the possession of the money raised and deposited in the bank for the purchase of the cement plant.

Appellant contends that Malcolm A. Maupin was not the owner of the $13,500, nor was he in possession of it at the time it was taken. Therefore, there is a fatal variance between the allegations in the indictment and the proof of the taking of the money.

The evidence shows that Maupin, the Manager of the Chamber of Commerce of Weatherford, arranged for the conference between the appellant and the Directors of the W.I.P., and as manager he also made other contacts and attended other meetings concerning the cement plant project. He was never a member, officer, or investor in the W.I.P. He was selected to make the inspection trip only after one of the two men previously selected was unable to go.

The instructions given Maupin limited his duties on the inspection trip to two things. They were: to determine the existence of the plant and upon the finding of its existence then to deliver to appellant a check drawn on the W.I.P. for $42,500. Both of these things he did. The check he delivered to appellant was an ordinary check, but at appellant's suggestion,...