Parnell v. State, 30391
| Citation | 339 S.W.2d 49,170 Tex.Crim. 30 |
| Decision Date | 29 April 1959 |
| Docket Number | No. 30391,30391 |
| Parties | Dallas M. PARNELL, Appellant, v. STATE of Texas, Appellee. |
| Court | Court of Appeals of Texas. Court of Criminal Appeals of Texas |
Hardeman, Smith & Foy, San Angelo, C. C. Renfro and J. Edward Johnson of Renfro & Johnson, Dallas, for appellant.
Henry Wade, Dist. Atty., William F. Alexander, James K. Allen, James M. Williamson and A. D. Jim Bowie, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State's Atty., of Austin, for the State.
The offense is felony embezzlement; the punishment, ten years.
This is a companion case to that of Hamman v. State, Tex.Cr.App., 314 S.W.2d 301.
The count of the indictment upon which the case was submitted to the jury is in form identical with that set out in the opinion in the Hammon case.
All of the relevant events occurred in the year 1955 and early in 1956. Unless otherwise indicated all dates herein mentioned will refer to the year 1955.
For convenience and brevity, Guy B. Hamman, George S. McGhee and James T. Valentine will be referred to as Hamman, McGhee and Valentine, respectively. Collectively they and appellant will be referred to as the 'promoters'.
Physicians Life and Accident Insurance Company, a corporation, the injured party, will be referred to as the Insurance Company. Physicians Investment Corporation will be called the Investment Corporation.
The case was submitted to the jury as one of circumstantial evidence and a conviction was authorized upon a finding by the jury that appellant acted together with Hamman or McGhee or Valentine or R. A. Stuart, or all of them.
That part of the law of principals was given in charge which makes all who are guilty of acting together in the commission of an offense guilty as principals.
The evidence from the State's standpoint is in a large measure shown in our opinion in Hamman v. State, supra. Notes secured by deed of trust liens, assigned to the Investment Corporation by the promoters in exchange for original stock of the Insurance Company at $1 per share were, according to witnesses for the State, paid with money belonging to the Insurance Company, without the consent of the Board of Directors, and released to the makers.
To account for the debit to surplus and credit to the Investment Corporation of the funds to pay off these obligations of the promoters, stock certificate stubs were altered to make it appear that stock sold to the public at $11.00 and $14.20 per share months earlier was stock that had been issued to the promoters and transferred by them.
Additional evidence will be set out in connection with appellant's contentions.
A principal contention of appellant repeatedly asserted in connection with various assignments of error will be first disposed of.
The indictment herein was in three counts. The first alleged theft of $225,000 from the Insurance Company and the third count alleged that appellant, together with Hamman, McGhee, Valentine and R. A. Stuart entered into a conspiracy to embezzle $225,000 belonging to the Insurance Company.
The second count, alleging the embezzlement, alone having been submitted to the jury, it is contended that appellant was thereby acquitted of conspiring with the other promoters. Accordingly, he argues, all evidence tending to show that appellant conspired with the other promoters to embezzle money from the Insurance Company 'passed out of the case for all purposes.'
Assuming that appellant stood acquitted of the substantive crime of conspiracy, this did not deprive the State and the jury of the evidence tending to establish the conspiracy, including the acts and declarations of his coconspirators, in considering the charge of embezzlement in pursuance of the common design or conspiracy. Richards v. State, 53 Tex.Cr.R. 400, 110 S.W. 432; Holt v. State, 39 Tex.Cr.R. 282, 45 S.W. 1016, 46 S.W. 829; and 9 Tex.Jur., Sec. 14, p. 392 and 393, are deemed authority contrary to appellant's contention.
Appellant contends that there is no evidence to show that he was present when the offense of embezzlement was committed, if it was, and for that reason his conviction as a principal rather than as an accomplice should be set aside.
To decide the question here presented we must first determine where and when the embezzlement occurred.
Dallas M. Parnell, appellant, was Vice-President, Director, Member of the Executive Committee of the Board of Directors and head of the real estate committee of the Insurance Company. He was also President and a Director of the Investment Corporation.
Guy B. Hamman was Secretary, Director and Member of the Executive Committee of the Insurance Company, and was Vice-President and Secretary and a Director of the Investment Corporation.
George S. McGhee was Treasurer, a Director and Member of the Executive Committee of the Insurance Company and was Treasurer and a Director of the Investment Corporation.
James T. Valentine was Vice-President, a Director and Member of the Executive Committee of the Insurance Company, and was Vice-President and Director of the Investment Corporation.
Collectively appellant, Hamman, McGhee and Valentine constituted majority control and dominated the Executive Committee of the Board of Directors of the Insurance Company.
The minutes of the meeting of the Executive Committee approving the purchase of appellant's $75,000 note do not disclose the fact that it was signed by or represented the obligation of one of the committee. The banker, according to these minutes, appeared and offered the note for sale, describing the security. It may be significant to note that the bank held appellant's note only as collateral.
The same is true as to the notes of the other promoters which were acquired by the Insurance Company. The transaction was between the Insurance Company, represented by the makers of the notes who were officers and directors of the Investment Corporation, and the bank which held the notes as collateral for the Investment Corporation's note.
Be this as it may, the notes were later assigned to the Investment Corporation and paid for, and were again pledged to secure the payment of bank loans to the Investment Corporation, appellant's to secure a $75,000 note to First National Bank, and Hamman, McGhee and Valentine's notes to secure a $150,000 note to Mercantile National Bank.
According to its minutes, appellant was present at a meeting of the Executive Committee of the Insurance Company on June 8 when a committee was appointed 'to arrange necessary financing to repurchase from the * * * Insurance Company * * * certain loans which had been acquired by the Company from the Empire State Bank.' Hamman and McGhee were also appointed on the committee, the fourth committeeman being the then President Yost.
Appellant was present at a stockholders meeting and a meeting of the Executive Committee of the Insurance Company on August 15.
There is no reference to the matter in the minutes of this meeting, however another meeting of the Executive Committee of the Insurance Company was held on September 17, the stated purpose being: 'To consider the matter of the guarantee of the * * * Insurance Company to the Mercantile National Bank, as per resolution heretofore passed on the 15th day of August, 1955, as to the payment of a note in the sum of $150,000.00 heretofore executed on August 24, 1955, by the Physicians Investment Corporation to said bank.'
Resolution was unanimously adopted on September 17 rescinding the action taken on August 15 'in which the * * * Insurance Company agreed and issued a letter to the Mercantile National Bank guaranteeing that it would purchase the $150,000.00 note of Physicians Investment Corporation, dated August 24, 1955.' Appellant and the other promoters whose notes secured the $150,000 loan to the Investment Corporation were present and formed a majority of the Executive Committee.
The minutes of this meeting of September 17 recite that the committee was advised that the Investment Corporation had acquired and had in its treasury a sufficient sum of money to pay off and liquidate the $150,000 due and payable to the Mercantile National Bank, and that the Executive Committee of the Insurance Company 'felt that said sum should be liquidated.'
The Executive Committee further resolved at said meeting that the Investment Corporation 'be called upon to immediately pay off and discharge said obligation to the Mercantile National Bank, of Dallas, so as to relieve the * * * Insurance Company from any obligation in connection therewith, and that said letter of agreement be surrendered to the * * * Insurance Company.'
Following the meeting of the Executive Committee of the Insurance Company at 2 p. m. on September 17, at which the Investment Corporation was called upon to pay off and discharge its obligation to the Mercantile National Bank represented by its $150,000 note, the same individuals met as the Board of Directors of the Investment Corporation at 3 p. m. the same day. The promoters constituted the majority at both meetings. R. A. Stuart and E. H. Owen were the only other members of the Executive Committee and the Board of Directors who were present at these meetings.
The minutes of the meeting of the Board of Directors of the Investment Corporation show that the Board was advised of the action of the Executive Committee of the Insurance Company demanding that the $150,000 note be paid, and that resolution was passed that it be paid.
The Investment Corporation, or at least Hamman, its Vice-President, and McGhee, its Treasurer, appear to have anticipated the action that was taken on September 17 for a check had already been issued by the Investment Corporation and delivered the day before, signed by these officers in their official capacity, and $50,000 was paid on the $75,000 indebtedness to First National Bank. This note was secured by appellant's note...
To continue reading
Request your trial
-
Carrillo v. State
...defendant's conviction as a principal was affirmed even though he had not been present when the money changed hands. Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49 (1959), was a prosecution for embezzlement. The evidence revealed that the defendant and his coparties used their authority ......
-
Arnott v. State
...conversations of each participant be admissible as to conspirators. Phelps v. State, Tex.Cr.App., 462 S.W.2d 310; Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49 (1959). The theory of principals necessarily involves conspiracy and in most cases such is shown by circumstantial evidence. Ea......
-
Carrillo v. State, 57329
...the Water District in this regard is analogous to that of the capacity of a board of directors of a corporation. In Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49 (1959), cert. denied, 364 U.S. 828, 81 S.Ct. 66, 5 L.Ed.2d 55 (1960), an embezzlement case where a crucial element is that th......
-
White v. State
...acts of appellant's co-conspirator which took place during the existence of the conspiracy were admissible.' See also Parnell v. State, 170 Tex.Cr.R. 30, 339 S.W.2d 49, 50. Such acts or declarations are admissible even though they are made outside the presence of the co-conspirator on trial......