Schwartz v. State, 34194
| Decision Date | 14 March 1962 |
| Docket Number | No. 34194,34194 |
| Citation | 172 Tex.Crim. 326,357 S.W.2d 393 |
| Parties | Louis M. SCHWARTZ, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Criminal Appeals |
Joel W. Westbrook, San Antonio, for appellant.
R. S. (Bob) Crawford, Jr., Dist. Atty., Uvalde, and Leon B. Douglas, State's Atty., Austin, for the State.
DICE, Commissioner.
The conviction is under Art. 1544b, Vernon's Ann.P.C., for the offense of embezzlement; the punishment, confinement in the penitentiary for a term of five years.
The indictment contained ten counts but only the fifth and eighth counts were submitted to the jury by the court in his charge.
By their verdict the jury found appellant guilty of the offense of embezzlement as charged in the eighth count.
The eighth count of the indictment alleged:
'AND THE GRAND JURORS AFORESAID, upon their oaths, in said Court, do further present, that on or about the 6th day of April, A.D., 1960, and anterior to the presentment of this indictment, in the County of Uvalde, and State of Texas, Louis M. Schwartz was an officer for an incorporated company, to wit: L. Schwartz Company, and by virtue of his being such officer the said Louis M. Schwartz came into possession, care and control of certain mohair, to wit: 3693 pounds of mohair, of the value of $4,062.30, belonging to Clifford Gee, and which said mohair had theretofore come into the possession, care and custody of the said L. Schwartz Company, as agent for the said Clifford Gee for the following purpose, to wit: the said L. Schwartz Company was to sell said mohair for a sum of money sufficient to pay the said Clifford Gee $1.10 per pound for said mohair, to collect the proceeds for the sale of said mohair, and pay over to the said Clifford Gee the sum of $1.10 per pound for said mohair from the proceeds of said sale; and the said Louis M. Schwartz did then and there fraudulently misapply and convert to his own use the said mohair, without the consent of the said Clifford Gee, the owner thereof,'
Appellant was president and one of the principal stock holders of L. Schwartz Company, a private corporation, with its principal place of business in the City of Uvalde. In addition to operating a grocery and hardware business, the company also traded in mohair and wool. As president of the corporation, appellant had control and management of the company's property and was in charge of its wool and mohair operation.
The State's evidence shows that in the spring of 1960 the company was under contract to deliver some 800,000 lbs. of mohair and had contracts to purchase only 200,000 lbs. from the growers. At such time the company was having difficulty in fulfilling the contracts and the price of mohair was higher than in the fall of 1959.
Clifford Gee, the injured party, testified that he talked to appellant around February 6, 1960, about selling his crop of mohair and told appellant that he wanted $1.11 1/2 gross or $1.10 net, per pound, for the grown mohair. Appellant, after making a telephone call, stated that he could not get the price at that time. Gee stated that later around March 1, he again talked to appellant about selling his mohair at the same price and that appellant made a second telephone call but no deal was consummated. Gee testified that thereafter during the latter part of March appellant saw him in the lobby of the Kincaid Hotel in Uvalde and said 'Well, I have finally been able to get you your price on your grown hair that I had been asking for, a dollar and eleven and a half gross' and he then asked appellant 'was he sure now that it would be a dollar ten to me net' and appellant replied 'Yes, it would'. Gee testified that thereafter on April 6, 1960, he delivered twelve bags of grown mohair to the L. Schwartz Company warehouse and received a warehouse receipt for 3693 pounds. Gee stated that it was his understanding and testified positively that the mohair was consigned to the company to be sold at the price mentioned and that he had never received any money for the mohair.
The proof shows that on the day Gee delivered the mohair to the warehouse the entire 3693 pounds was delivered, along with other mohair, by L. Schwartz Company to Clyde Young of Lampasas in satisfaction of five separate written contracts whereby the company had contracted to deliver 160,000 of mohair to Young in the spring of 1960 at prices ranging from 86 1/2cents to 91 1/2cents per pound for the adult mohair. In the transaction Young received $34,737.85 worth of mohair and after deducting certain advances which he had made to the company and the difference on two cars of mohair not delivered, all of which aggregated $31,812.00, Young paid to L. Schwartz Company the sum of $2925.85. On such date it was shown that adult mohair had a market price ranging from $1.01 1/2 to $1.10 per pound.
The proof further shows that on April 6, 1960, the date Gee delivered the mohair to L. Schwartz Company, the company was in financial difficulty and was in fact insolvent and that a short time thereafter the company closed and was placed in bankruptcy. During the time of appellant's negotiations with Gee, appellant was indebted to the company.
Appellant, as a witness in his own behalf, testified that he had been president of the L. Schwartz Company since 1952 and in such capacity had over-all control and management of the company. Appellant admitted having the transaction with the prosecuting witness, Gee, relative to his sale of the mohair to the company and testified that in the transaction the company purchased the mohair from Gee at a price of $1.10 and denied that the mohair was delivered to the company upon consignment. Appellant also admitted the transaction with Young in which the 3696 pounds of mohair was delivered to Young in fulfilling the contracts.
Witnesses were called by appellant who testified that his general reputation for honesty and fair dealing was good.
We find the evidence sufficient to sustain the conviction and overrule appellant's contention that there was a fatal variance...
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