Nees v. State, 38912

• Decision Date: 16 March 1966
• Docket Number: No. 38912,38912
• Citation: 402 S.W.2d 186
• Parties: Robert P. NEES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Criminal Appeals

Page 186

402 S.W.2d 186

Robert P. NEES, Appellant, v. The STATE of Texas, Appellee.

No. 38912.

Court of Criminal Appeals of Texas.

March 16, 1966.

Rehearing Denied May 18, 1966.

M. Herbert Oldham, Phillip Bordages, Beaumont, for appellant.

W. C. Lindsay, Dist. Atty., Jim Vollers, Asst. Dist. Atty., Beaumont, and Leon B. Douglas, State's Atty., Austin, for the State.

BELCHER, Commissioner.

The conviction is for the misapplication of county funds in violation of Art. 95, Vernon's Ann.P.C.; the punishment, four years.

It is charged that the appellant on or about July 31, 1959, while deputy sheriff of Jefferson County, Texas, did fraudulently take and convert to his own use $312.35 belonging to Jefferson County which had come into his possession as such officer. The indictment was returned on November 28, 1961.

The proof shows and it is undisputed that the appellant was the duly appointed, qualified, and acting deputy sheriff of Jefferson County at the time here in question. The appellant as such officer was assigned the duties of chief clerk of the sheriff's office. These duties were to receive and to account for all funds paid to the sheriff's office in payment of fines, judgments, tax sales, and other matters for which funds were collected, and to issue receipts for cash, checks, and all funds, and to deposit, disburse, and make a monthly report.

J. M. Gowling, deputy district clerk, testified that he was employed as chief clerk in the sheriff's office from 1941 to 1947, when he went to work in the auditor's office, where he continued working until 1961 when he was employed in the office of the district clerk. The appellant began working as chief clerk in the sheriff's office in 1947, and continued in such position until January 4, 1961. During the period from 1947 to 1961, Gowling and the appellant had discussed the duties of the chief clerk of the sheriff's office. On January 4, 1961, Gowling went to appellant's office and asked for a particular check stub. At this time the following occurred:

'Q At that time, what, if anything, did Mr. Nees tell you?

'A He asked me to take a walk across the street with him.

'A He said he had something he wanted to tell me.

'Q You are talking about Bob Nees, Robert P. Nees, the Defendant in this case?

'A Yes, sir.

'A He said he was short in his funds.

'A I asked him what he meant by 'being short', he said, 'I am. * * * I mean I am short in my accounts in the office.'

'A He said, 'Somewhere in the neighborhood of Fifteen Thousand or more.'

'Q Now, was that fifteen thousand dollars?

'A Yes, sir.

'Q What, if anything, did you do or say then?

'A I asked him what he meant by it, he said, 'Well, I just mean I am short in my funds.' And I said, 'Well, Bob, do you know what this means?' And he said, 'Yes, I do.'

'A He said, 'What?' I said, 'We are going to have to go and talk to Charlie.'

'Q Now, when you say 'go and talk to Charlie,' who did you mean by Charlie, who were you referring to?

'A The Sheriff, Charlie Meyer.

'A I told Bob to tell Charlie what he told me.

'Q Did he tell him?

'A He did.

'Q And were you present while he talked to him?

'A Yes, sir.

'Q All right. Was that on or about the 4th of January, 1961?

'A Yes, sir.

'Q Now, at the time that you were talking to Mr. Nees when he first told you about this was he under arrest or charged with anything, or * * *.

'A No, sir.'

Between 4 and 5 p.m., January 4, 1961, Deputy Sheriff Moon and the appellant went to the office of Pat Hayes, an investigator for the district attorney's office, where the appellant after having been warned by Hayes in accordance with the statute in effect in 1961, made and signed a written statement pertaining to the shortage of funds and it reads in part as follows:

'My name is R. P. Nees, I am 54 years of age and I live * * * in Beaumont, Texas. In March of 1947 I went to work for Sheriff C. H. Meyer, as a deputy sheriff in Jefferson County and have worked since that time as the office deputy.

'As the office deputy I am the only person who receives money paid into the Sheriff's Office for fines, from people who have been fined in the courts, and fees from civil papers served. I account for the money received by the sheriff's office and I disburse this money in the various places it goes into different offices of the county. When I am not in the office fines are paid to other people in the office, but this money is turned over to me and I am the one who disburses it.

'Sometime in 1952 or 1953 I was in a financial strain because of an illness in my family. I began taking money out of the sheriff's office funds that were in my possession as office deputy. I continued to take money that I knew belonged to Jefferson County and to use for my own personal use and was hoping that I would be able to put it back after I sold some property that I inherited. I inherited this property three or four years after I started taking office money. After I sold the property I did put some of the money back, but not all of it. I have continued to take for my own personal use the money received by me in the Sheriff's Office up through last month. Since I began taking money out of the office up to the present time I would estimate that I have taken between sixteen and eighteen thousand dollars.

'I have to make a monthly report to the auditor's office and I would use the money collected during a current month to make up the shortage on the last month's report. I did not report fees that I had collected, or show them on my reports, to build up a surplus to cover the monthly reports.

'No other person in the Sheriff's Office, or in the county offices, is responsible in any way for this shortage. I am the only person involved and no one else knew what I was doing. I knew at the time I took this money that it was the property of Jefferson County and no one gave me permission to take or use any of the money received by me as office deputy for my own use and benefit.'

After a hearing in the absence of the jury on the issue of the voluntary nature of appellant's written statement, the trial court held that it was voluntarily made and was not as a matter of law inadmissible. No objection was made on the ground that the statement was not voluntary. The objections to it were that he did not have an attorney with him at the time and he was not take before a magistrate before the statement was made.

The evidence reveals that the Port Arthur Independent School District issued its check dated July 10, 1959, in the sum of $312.35, payable to the sheriff of Jefferson County for a cost bill covering several tax suits; that no receipt was issued for this check and there was no accounting for the check in any of his monthly reports of disbursements; that the school district did not receive any further bill or demands for payment of the matters covered by this check; that said check according to the deposit slips was deposited and returned to and paid by the drawee bank of the school district. The total receipts issued for the month of July, 1959, were $4,372.69, while the total deposited was $2,786.22. The total deposit in the bank for July, 1959, should have been $4,685.04. The testimony reveals a deposit July 30, 1959, of a check in the amount of $312.35 which was not shown on the receipts. The check for $312.35 is not shown in the monthly report of July, 1959, and the audit of the records of that office until December 5, 1961, does not account for the check other than its deposit and the check stub.

Auditor Nelson of the county auditor's office testified in part as follows:

'Q Now, in the light of what you have testified to and based upon your experience as an accountant and your familiarity with the procedures in the Sheriff's office in accounting...