Nesbitt v. State

• Decision Date: 14 February 1912
• Citation: 144 S.W. 944
• Parties: NESBITT v. STATE.
• Court: Texas Court of Criminal Appeals

144 S.W. 944

NESBITT v. STATE.

Court of Criminal Appeals of Texas.

February 14, 1912.

Appeal from District Court, Coryell County; J. H. Arnold, Judge.

G. M. Nesbitt was convicted of embezzling the proceeds of a check given him for deposit for another, and he appeals. Reversed and remanded.

S. P. Sadler, for appellant. J. R. McClellan, Dist. Atty., and C. E. Lane, Asst. Atty. Gen., for the State.

HARPER, J.

Appellant was indicted under article 940 of the Penal Code of 1911 in one count; it being alleged that, he being a private person, one H. L. Smith did intrust and deliver to him a check for $60 to be deposited in the Farmers' National Bank at Gatesville, Tex.; that defendant failed to deposit said check in said bank, and did fraudulently embezzle and fraudulently convert to his own use the said check. In another count it is alleged that defendant appropriated the money received on said check. Appellant did not move to quash the indictment, but after announcement for trial, objected to the introduction of any evidence on the ground that the indictment alleged no offense under the laws of this state. The indictment in this case is drawn in accordance with the form laid down in White's Penal Code (section 1632), and is in accordance with the decision of this court in Nassitts v. State, 36 Tex. Cr. R. 5, 34 S. W. 957, and the court did not err in admitting evidence thereunder.

In this case the state's evidence would show that H. L. Smith had money on deposit in the Gatesville National Bank, and appellant was a stockholder in the Farmers' National Bank, and appellant solicited the prosecuting witness to change and do business with the Farmers' National Bank. This was after banking hours, and, when Smith agreed to do business with the Farmers' National Bank, appellant suggested to him to give him a check, and he would deposit for Smith next morning when the bank opened. He did not deposit the check to Smith's account, but deposited it to his (appellant's) account, and used the money himself. The state proved by Smith that he had the money on deposit in the Gatesville National Bank at the time he gave the check, to which appellant objected. Article 940 provides that, if one intrusted with property to be carried and delivered by him to some other person shall embezzle or fraudulently convert to his own use such property, he shall be deemed guilty of theft, and shall be punished as is prescribed for that offense. The indictment alleged the check to be of the value of $60. If Smith had no money in the bank, the check would have been of no value, and as it is necessary to prove that the property embezzled or converted has some value, and its value must be at least $50 to constitute a felony, there was no error in admitting this testimony on the question of the value of the property.

The state offered the check in evidence given by Smith to Nesbitt, and described in the indictment. In this there was no error, and the objections stated in the bill are not tenable.

Leake Ayres testified that he was an officer in the First National Bank, and that appellant deposited the check to his (appellant's) credit, at that bank, saying: "I have the original deposit slip showing that the Smith check was deposited to defendant's credit for the amount of $60." The witness further testified that, after depositing the check, appellant gave A. R. Williams, cashier of the bank, a check for the amount, and it went to the credit of one of appellant's notes. Defendant objected to this testimony on the ground that the indictment alleged "an appropriation of the proceeds of the check, to wit, $60, in current money of the United States, and that the testimony shows he received no money," and other objections stated in bills 3 and 4. The first count in the indictment alleged conversion of the check, and the second the proceeds of the check, and there was no error in admitting the testimony. Defendant in his testimony admitted that he had deposited the check to his credit, and had checked it out the same day, and had the amount credited on a note due by him, giving a new note for the remainder due.

Neither was there error in permitting the witness to testify that "Nesbitt (appellant) received the proceeds of the check, or received the money in the way of credit on the note that he owed the bank." The first count in the indictment alleges that appellant did "fraudulently embezzle and fraudulently convert said check to his (appellant's) own use and benefit," and this evidence would be admissible under this allegation.

Davis Trout, a witness for defendant, had testified that the prosecuting witness Smith had told him that he had let appellant have a check, and appellant had collected and used the proceeds, and that appellant had told him, Smith, about it, and he had told appellant it was all right provided he paid it back in a few days. On cross-examination he was permitted to testify as shown by bill of exceptions: "We were talking about Hall and Freeland, and it finally drifted to this check. Smith asked me if I knew what Hall and Freeland intended to do, and said that he had a conversation with Hall, and proposed to Hall that for him and Freeland and Hall to go together and indict Guy in one bill, and maybe that could do more with him, and in that conversation he said something about having to sell his buggy and team to pay off two notes for about $500 which he had gone on for defendant." Various objections were urged to this testimony, and it was error...