Scisson v. State
| Decision Date | 24 February 1932 |
| Docket Number | No. 14743.,14743. |
| Citation | 51 S.W.2d 703 |
| Parties | SCISSON v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from Criminal District Court, Nueces County; Geo. C. Westervelt, Judge.
Hays Scisson was convicted of embezzling property worth over $50, and he appeals.
Reversed and remanded.
S. L. Gill, of Raymondville, and Tarlton & Lowe, of Corpus Christi, for appellant.
Lloyd W. Davidson, State's Atty., of Austin, for the State.
The offense is embezzlement of property over the value of $50; the punishment, confinement in the penitentiary for two years.
This court is without jurisdiction to pass upon the merits of the case, owing to the fact that the recognizance on appeal does not comply with the legal requirements, in that it fails to state that appellant was convicted of a felony. This is an essential statutory requisite. Article 817, C. C. P.; Read v. State, 109 Tex. Cr. R. 314, 4 S. W. (2d) 547; Wright v. State (Tex. Cr. App.) 35 S. W. (2d) 413; Friday v. State (Tex. Cr. App.) 36 S. W. (2d) 1036.
The appeal is dismissed. Appellant is granted fifteen days from this date in which to perfect his appeal.
The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.
On the Merits.
The record having been perfected, the appeal is reinstated, and the case considered on its merits.
The case was tried in Nueces county on a change of venue from Willacy county. Appellant was assessor and collector of taxes for the Raymondville independent school district. Mrs. N. H. Windsor mailed appellant her check, drawn on the Republic National Bank & Trust Company of Dallas, for $466, in payment of taxes due by her on property located in the Raymondville independent school district. This check was made payable to the order of appellant as collector for the district, and was signed by Mrs. Windsor. The depository bank of the district was Raymondville State Bank of Raymondville, Tex. Appellant deposited the check in a bank in Brownsville, Tex., to the credit of his individual account. He later withdrew a sufficient amount of money to offset the credit he had received on the books of the bank. Mrs. Windsor was not credited by appellant with the payment of the taxes, but the records of the district showed same to be delinquent. There was evidence of a shortage in appellant's accounts; the proof showing that he was due the district approximately $11,000, represented by taxes he had collected.
It was charged in the indictment, in substance, that appellant was the assessor and collector of taxes of the Raymondville independent school district of Willacy county, Tex., an incorporated institution; that he fraudulently embezzled, misapplied, and converted to his own use, without the consent of the district, a check belonging to the district in the sum of $466, executed by Mrs. N. H. Windsor; that the check had come into his possession and was under his care by virtue of his office. The check was set out in hæc verba in the indictment. It was alleged that it was of the value of $466.
After the conclusion of the evidence, appellant requested the court to instruct the jury to return a verdict of not guilty on the ground that the proof failed to sustain the allegation that he had embezzled a check belonging to the school district. The opinion is expressed that appellant's contention that there was a variance should have been sustained.
A tax collector has no authority to receive anything but cash in payment of taxes. Austin, State Banking Commissioner, v. Fox (Tex. Com. App.) 1 S. W. (2d) 601; Figures v. State (Tex. Civ. App.) 99 S. W. 412; Ward v. Marion County, 26 Tex. Civ. App. 361, 62 S. W. 557, 63 S. W. 155; City National Bank of El Paso v. City of El Paso, Texas, (C. C. A.) 10 F.(2d) 308; Eggleston v. Plowman, 49 S. D. 609, 207 N. W. 981, notes 44 A. L. R. 1231, 1234, and cases cited. The judicial precedents are to the effect that private arrangements for payment (differing from the statutory method), made between the collector and taxpayers, and performance thereof, are at the risk of the parties thereto, and not of the state or county. Austin, State Banking Commissioner v. Fox, supra; Orange County v. T. & N. O. R. Co., 35 Tex. Civ. App. 361, 80 S. W. 670; Texas & N. O. R. Co. v. State, 43 Tex. Civ. App. 580, 97 S. W. 142. Appellant was not authorized to receive the check in payment of taxes. When he accepted the check from Mrs. Windsor, he did so merely as an accommodation to her, and not in his official capacity as agent of the school district. To constitute the crime of embezzlement, the conversion must be of money or other property of the principal or employer, and it must come into the possession of such agent or employee by virtue of such agency or employment. Brady v. State, 21 Tex. App. 659, 1 S. W. 462; Dickey v. State, 65 Tex. Cr. R. 374, 144 S. W. 271. We think it is clear that the proof did not support the allegation that appellant embezzled a check belonging to the school district.
In State v. Ross, 312 Mo. 510, 279 S. W. 411, it was shown that Ross was deputy commissioner of finance of the state of Missouri. It was charged in the indictment that he, while acting as deputy commissioner of finance, in charge of the assets of a certain named bank, embezzled approximately $3,000 which came into his hands. The proof showed that Ross received a check in the amount mentioned in the indictment payable to him as examiner in charge of the bank; that he cashed the check and deposited the proceeds in another bank to his individual account; that the proceeds never got into the official account of the commissioner of finance. Ross claimed that there was a variance between the pleading and proof because the proof showed that there was an embezzlement of a check and not an embezzlement of the money, the proceeds of the check. In concluding that there was no variance, the Supreme Court of Missouri referred to the fact that proof of the embezzlement of a check did not sustain a charge of the embezzlement of money, but said that the check was made payable to Ross as deputy finance commissioner, and that he had a right to collect it in his official capacity, and hence that his collection of the money on the check was no crime. The court said further that the conversion occurred when Ross obtained the money, diverted it from its proper channel,...
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Hanna v. State
...instead of the $105 alleged in the indictment and did not deliver it to Sullins. This court has held in the case of Scisson v. State, 121 Tex.Cr.R. 71, 51 S.W.2d 703, that the tax collector of an independent school district had no right to receive a check in payment of taxes due the distric......