Stocks v. State, 22608.

• Decision Date: 24 November 1943
• Docket Number: No. 22608.,22608.
• Citation: 179 S.W.2d 305
• Parties: STOCKS v. STATE.
• Court: Texas Court of Criminal Appeals

179 S.W.2d 305

STOCKS v. STATE.

No. 22608.

Court of Criminal Appeals of Texas.

November 24, 1943.

Rehearing Denied March 29, 1944.

Application for Leave to File Second Motion for Rehearing Denied April 19, 1944.

Commissioners' Decision.

Appeal from District Court, Lubbock County; C. D. Russell, Judge.

Banks Stocks was convicted of embezzlement of property over the value of $50, and he appeals.

Affirmed.

Eugene F. Mathis, of Lubbock, and Mathis & Caldwell, of Wichita Falls, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

KRUEGER, Judge.

The offense is embezzlement of property over the value of $50. The punishment assessed is confinement in the state penitentiary for a period of two years.

The indictment in this case contains two counts, the first of which charges that appellant was an agent and employee of the Western Hereford Exchange, an incorporated company, and as such agent he did, in Lubbock County, Texas, unlawfully and fraudulently embezzle, misapply and convert to his own use, without the consent of said incorporated company, eighty-one head of cattle of the value of $3,091.29, which said property had come into his possession by virtue of his agency and employment. The second count charges him with being the agent of Harry F. Stream and Forrest M. Larmer, a co-partnership, and that he did, in Lubbock County, Texas, unlawfully and fraudulently embezzle and convert to his own use, without the consent of Harry F. Stream and Forrest M. Larmer, forty head of cattle of the value of $1,465.07, which property had come into his possession by virtue of his agency and employment, etc.

The court submitted the case to the jury only on the first count.

Appellant, in due time, addressed a number of objections to the court's charge, specifically pointing out what he conceived to be error, but the court declined to amend his charge to meet the objections. He also requested certain special charges, some of which the court gave and some he declined to submit to the jury. These matters are the subjects of appellant's complaints, which he has brought forward by proper bills of exception.

Appellant's first complaint relates to the court's action in failing to instruct the jury upon the law of circumstantial evidence. If the State's case rested upon circumstantial evidence, then he was entitled to such an instruction; otherwise he was not. In order to decide this question, we must look to the statement of facts to determine whether the proof brings it within the realm of circumstantial evidence. The State, by direct evidence, proved the following facts: (a) That appellant, at the time in question, was the agent and employee of the Western Hereford Exchange, a corporation, with its principal place of business at Muscatine, Iowa; (b) that he was authorized to buy cattle for the corporation and to draw drafts on it with bills of sale attached; (c) that on or about the 24th day of October, 1940, he purchased from Blackwell & Brantner, for his principal (the corporation), eighty-one head of mixed calves for the sum of $3,091.25; (d) that he drew a draft on the Western Hereford Exchange in said sum with bill of sale attached and by virtue of said transaction came into the possession of said cattle; (e) that on or about said date he engaged C. R. Kelly (Sheriff of Kent County) to haul the cattle to Lubbock. (Mr. Kelly further testified that he was under the impression that appellant instructed him to deliver the cattle to the Lubbock Auction & Commission Company); (f) that on the 25th day of October appellant did sell eighty-one head of cattle as his own through said commission company for the sum of $2,884.57, which, according to the account of sales, were young heifers and steers, the average weight being about 600 pounds; that it is customary in live-stock trade to refer to heifers and steers as mixed calves, depending upon their age and size; (g) that appellant did not have any authority to sell said cattle; (h) that on the following day he paid to the Citizens National Bank of Lubbock, Texas, his personal note in the sum of $1,419.53; (i) that he never did deliver said eighty-one head of cattle to the Western Hereford Exchange, but that soon after the transaction in question he severed his connection with the corporation and went to the State of California (the record being silent as to why he went there), but on the first day of May, 1941, he wrote a letter to Harry F. Stream, vice-president of the corporation, in which he admitted his shortage to the corporation and suggested certain terms upon which he was willing to settle with it.

We do not deem it necessary to enter upon an extended discussion of the question to demonstrate that the facts proven are sufficient to take the case out of the realm of circumstantial evidence, suffice it to say that appellant came into possession of the cattle in question by reason of his employment but never delivered the cattle to his employer or accounted to it for them. This makes a complete case of embezzlement of the cattle. In support of what we have said here, we refer to the following cases: Stephenson v. State, 138 Tex.Cr.R. 384, 135 S.W.2d 1005; Bell v. State, 132 Tex.Cr.R. 81, 104 S.W.2d 511; Clinton v. State, 132 Tex.Cr.R. 303, 104 S.W.2d 39. His contention is overruled.

Appellant next contends that the trial court erred in declining to submit to the jury his special requested instruction to the effect that if they believed from the evidence or had a reasonable doubt thereof that the defendant first conceived the idea of converting to his own use and benefit the proceeds of the sale of the cattle, then they should find him not guilty or to incorporate one of like import in his main charge. In support of his contention he cites us to the case of Landrum v. State, 73 Tex.Cr.R. 580, 166 S.W. 726. An examination of the facts of that case show that Landrum had been specifically authorized by Mrs. Dunn to dispose of her stock in the Amicable Life Insurance Company and to procure for her 250 shares of stock in the Western Casualty & Guaranty Company. It will thus be noted that the accused in that case had authority to dispose of the stock and did so, but failed to obtain for her any stock in the latter company. Conseqently, an issue of fact was raised as to whether he conceived the idea of converting the stock or converting the proceeds of the sale of the stock after he had disposed of it. But in the instant case, appellant had no authority to dispose of any cattle except "tail ends or cut backs", but the cattle in question did not come within such class, which distinguishes this case from that of Landrum v. State, supra. The question here raised was before this court in the case of Sherman v. State, 124 Tex.Cr.R. 205, 61 S.W.2d 488, 489, in which the court, among other things, said:

"Notwithstanding that appellant may have had authority to make the sale of the stock alleged to have been embezzled, yet, if he sold the same with the formed intention to defraud the owner and to convert the proceeds to his own use and benefit, he is as much guilty of embezzlement of the stock as if he had no authority to make such sale. Leonard v. State, 7 Tex. App. 417; Henderson v. State, 55 Tex.Cr. R. 640, 117 S.W. 825. We quote from 16 Tex.Jur. p. 351, as follows:

"`Sometimes one who has sold property entrusted to him for sale and absconded with the proceeds, on being accused of embezzlement of the proceeds of the sale, will defend on the theory that what he embezzled was the property itself, and vice versa. It seems that this is largely a question of intent. It has been said that if at the time of the sale the accused had the intent to appropriate the proceeds, he is guilty of embezzlement of the article, but that if the intent to appropriate them develops after the property has been sold he is guilty of embezzlement of the proceeds of the sale.'"

In the instant case, the facts are sufficient upon which the jury could reasonably base the conclusion that appellant formed the intent to appropriate the cattle to his own use and benefit at the time that he was in lawful possession thereof by virtue of his agency and employment and at the time that he had the cattle taken to the auction ring to be disposed of. We, therefore, overrule his contention.

His next complaint is based on the failure of the court to affirmatively instruct the jury that if the defendant had the implied or express authority to sell the cattle described in the indictment, he would not be guilty unless at the very time of the sale he had formed the intent to convert the funds obtained from the sale of the cattle to his own use and benefit. He contends that he was entitled to such a charge because he introduced in evidence several letters from the president of the corporation instructing him to sell certain cattle denominated "tail ends". A most careful review of the record has satisfied us that the evidence is not sufficient to raise the issue. Appellant had been especially authorized in certain instances to sell some "tail ends" or "cut backs", but this authority was special and limited to certain class of cattle and was not general. The evidence does not show either express or implied authority to sell the cattle in question; hence no charge on the subject was required. However, the court, at the request of appellant, instructed the jury that if they believed from the evidence, or had a reasonable doubt thereof, that the defendant had the consent of an officer or agent of the Western Hereford Exchange to sell the cattle described in the indictment, to find him not guilty. We think this requested instruction was sufficient to meet the objection urged against the court's main charge.

All other matters complained of have been considered and deemed to be without merit.

No reversible error having been presented by the record, the judgment of the trial court is affirmed.

PER CURIAM.

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