Powell v. State

• Decision Date: 27 June 1917
• Docket Number: (No. 4565.)
• Parties: POWELL v. STATE.
• Court: Texas Court of Criminal Appeals

Page 317

198 S.W. 317

POWELL v. STATE.

(No. 4565.)

Court of Criminal Appeals of Texas.

June 27, 1917.

On Motion for Rehearing, November 14, 1917.

Appeal from District Court, Clay County; Wm. N. Bonner, Judge.

J. D. Powell was convicted of embezzlement, and he appeals. Affirmed.

Kay & Akin, of Wichita Falls, and Taylor, Allen & Taylor, of Henrietta, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

PRENDERGAST, J.

Appellant was convicted of embezzlement and assessed the lowest punishment. He was indicted by the grand jury of Archer county. By agreement the venue was changed to Clay county, where the trial occurred. The indictment averred that appellant, in Archer county, Tex., on or about January 27, 1915, was then and there the agent and employé of Florence C. Field, a private person, and that he did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of Mrs. Field certain money, to wit, $373.75, the same being lawful money of the United States of America of the said value of $373.75, and which was the corporeal personal property of and belonging to Mrs. Field, and which said money had theretofore come into the possession of and was then and there under the care of the said Powell by virtue of his said agency and employment.

There are but two questions to be decided. One is whether appellant was Mrs. Field's agent or employé when he received the embezzled money, and the other is whether he received money, lawful money of the United States.

The facts shown were that in February, 1914, and prior thereto, J. D. Powell and one W. C. Young were partners in the real estate business, and lived and did business in Archer City, in Archer county; and then conducted their business under the name of W. C. Young Land Company. While they were partners Powell was the manager. It seems they dissolved before January, 1915.

Said Mrs. Field lived in Dallas. So did her general agent Mr. C. B. Gillespie. Since 1912 Mr. Gillespie had entire charge, as her general agent, of all of her business, and he had authority to employ Mr. Powell, or any one else, to collect Mrs. Field's notes, and everything he did in the matter was done with her sanction and approval. In 1914 Mrs. Field owned some land in Archer county. In the early part of that year Mr. Gillespie, her general agent, employed said firm of W. C. Young Land Company to sell that land for Mrs. Field, which they did, selling it to Helm & Rayborn. At the time of the sale and as a part of the purchase money thereof, Helm & Rayborn executed to Mrs. Field seven notes for $373.75 each; one each due annually until all matured. They were each dated February 21, 1914, signed by said Helm & Rayborn, each payable to the order of Mrs. Field; the first one due on or before February 1, 1915, payable at Archer City, they each retaining a lien on said land and had the usual maturing and securing and attorney's fee clauses. Shortly before the first note became due Mr. Gillespie, for Mrs. Field, sent it in a letter addressed to said land company at Archer City for collection. At the time Mr. Gillespie knew that Mr. Powell, appellant, was or had been manager, of said land company and all of his previous transactions with that firm had been with Mr. Powell himself. At the time he sent this note in said letter he also inclosed therewith a receipt for the interest for one year on all the other of said notes. At the time he sent this note and receipt he did not know that said land company had dissolved, but he knew that said Powell had charge of the concern, and he was the only man that he knew in it. In this letter transmitting the note and receipt, Mr. Gillespie stated that he was sending it for collection for Mrs. Field. All the correspondence thereafter, carried on between Mr. Gillespie as Mrs. Field's agent and said Powell was carried on in the name of Mr. Powell individually.

As soon as Mr. Powell received said note and receipt for collection he promptly notified Mr. Helm that he had the said note "in favor of Mrs. Field," and asked him if it would be satisfactory to pay it through him as it would be to pay it direct to Mrs. Field, as he would get a commission out of it if paid through him. At the time he inclosed Mr. Helm a statement, showing that the year's interest, $197.10, and the principal of the note, $373.75, would make $570.85. Thereupon, on January 27, 1915, Mr. Helm sent Mr. Powell his check on a Wichita Falls bank for the $570.85, payable to Powell, dated said date. Powell thereupon sent the note and receipt for the interest to Mr. Helm. On January 30th Powell indorsed his name on the back of that check and deposited it in the bank at Archer City, to his own credit, and that bank at that time gave him credit therefor. The bank at Archer City sent the check through its bank correspondent, and in the usual course of business the check was paid and returned to Mr. Helm and produced and introduced on this trial. Between the dates of January 30th and February 27th, appellant drew out of the Archer City bank all of said money on various small checks—some of them were perhaps later than February 27th.

Although Powell collected said note and interest on January 30th and placed it all to his credit in the Archer City bank he did not remit a cent of it to Mrs. Field or to Mr. Gillespie, her general agent, until February 17th following. On February 15th, Mr. Gillespie wrote to Powell evidently inquiring whether he had collected the note and interest. On February 17th, Powell answered that letter and sent Mr. Gillespie a check for $197.10, saying, "Covering interest on the Field notes, and beg to say that the principal will be met in a short while." The principal of the note, $373.75, or no part of it, has ever been remitted by Powell; instead he appropriated and embezzled the whole of it himself.

Appellant did not testify. He contends that the evidence showed that in the collection and receipt of said money he was not the agent or employé of Mrs. Field. Mr. Gillespie swore:

"I had general authority from Mrs. Field to handle her business. I was collecting this money for Mrs. Field; my whole connection with the matter from start to finish was for her, as her agent, acting under a power of attorney, at Dallas. Mrs. Field is a widow, and I handle and have handled all of her business since 1912."

He further swore that when he sent this note and receipt in his letter to said land company or J. D. Powell:

"I stated that I was sending it for her, Mrs. Field, and all of my correspondence states that. * * * I assumed the authority because Mrs. Field did not know Mr. Helm or Mr. Powell, or anybody else, and the land had been sold by them through me, * * * and I acted in the same way that I sent the collection there to them. I think that I could have employed anybody else; that I had the authority to employ Mr. Powell or anybody else to do the collecting of this note. I think that would have been permissible under Mrs. Field's authority to me to collect her paper. * * * As to whether the selection of the W. C. Young Land Company or J. D. Powell was wholly a selection of mine to represent me in the collection of this paper (or) for my principal, Mrs. Field, will say that everything that I did in the matter was done with her sanction and approval."

He further swore that in sending the note and receipt for collection, as stated:

"I represented Mrs. Field in the matter, and, of course, the note was not mine."

In testifying about the sale of her land in Archer county to Helm & Rayborn, Mrs. Field swore:

"I had nothing whatever to do with that transaction myself; Mr. C. B. Gillespie acted as my agent, had entire charge of it, and handled the matter for me."

On cross-examination, when asked if Mr. Powell collected the money for her or was her agent, she swore:

"No one ever attended to anything of that kind for me but Mr. C. B. Gillespie—he has entire charge of everything. * * * Mr. Gillespie attends to everything of that kind."

On redirect examination she swore:

"Yes, sir; I did leave the matter of selecting who should collect or the collection of this note to Mr. Gillespie, and whoever he got in Archer county to collect the note was all right with me; it was all right for Mr. Gillespie to select whom he chose, for he has entire charge of my entire estate."

Mr. Helm swore that, just before this first note was due:

"Mr. J. D. Powell notified me that he had one of these notes of mine that was due, in favor of Mrs. Field, and asked me if it would be satisfactory to me to pay it through him as to pay it direct to Mrs. Field; that he would then get a commission out of it, and of course I told him that it would be satisfactory to me. I paid the note through Powell, and got my note. * * * At that time in addition to paying that note to Mr. Powell, which was $373.75, I also paid to him the interest on the series of notes which amounted to $197.10, making $570.85, principal and interest that I paid him—to J. D. Powell."

As stated, Mrs. Field and Mr. Gillespie lived in Dallas, Mr. Helm and appellant lived in Archer county. The note was payable to the order of Mrs. Field. She did not indorse it. It was payable in Archer City. Mrs. Field did testify she did not employ Powell, and he was not her agent or employé, but her testimony shows she meant she did not personally employ him, and therefore, because she did not personally employ him, she said he was not her agent or employé.

In Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574, Maney sued Eastland and others for his commissions which he claimed were due him for selling their land in Frio county, as their subagent. The court correctly held:

"It is a general rule of the law that in the absence of any authority, express or implied, an agent has no authority to employ a subagent, the trust committed to him being personal, and he cannot delegate it to another so as to affect the...