Taylor v. State

• Decision Date: 13 May 1891
• Citation: 16 S.W. 302
• Parties: TAYLOR v. STATE.
• Court: Texas Court of Appeals

16 S.W. 302

TAYLOR v. STATE.

Court of Appeals of Texas.

May 13, 1891.

Appeal from Bowie county court.

Todd & Hudgins, for appellant. R. H. Harrison, Asst. Atty. Gen., for the State.

DAVIDSON, J.

A motion to quash the indictment as well as a motion in arrest of judgment were urged in the court below, which were overruled, and assignments of error bring these same matters before this court. We quote from the indictment sufficiently to bring these questions in review. Among other things, the said indictment charges that "O. P. Taylor * * * was then and there the agent and attorney in fact of A. E. Sanders, a private person, (who appointed said O. P. Taylor her said agent and attorney in fact under the name of A. E. Livingstone;) and the said O. P. Taylor did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of the said A. E. Sanders, viz., two thousand dollars, said money being of the value of two thousand dollars, which said money had come into the possession of the said O. P. Taylor by virtue of his said agency and employment as attorney in fact for said A. E. Sanders." The motion to quash this indictment was based upon two grounds, — the first being that the money alleged to have been embezzled was not described; and the second that it should have been, but was not, alleged that a description could not be given of said money so embezzled. Our Code of Criminal Procedure provides that, "when it becomes necessary to describe property of any kind in an indictment, a general description of the same, by name, kind, and quantity, number and ownership, if known, shall be sufficient." Code Crim. Proc. art. 427. The word "property" as used in above-cited article of the Criminal Procedure, includes "money." Brown v. State, 23 Tex. App. 214, 4 S. W. Rep. 588. The word "money," where not specially defined by our statutes, includes metallic coins of all descriptions used as money, as well as "that which is legal tender;" as legal-tender coins or legal-tender treasury notes of the United States. Lewis v. State, 28 Tex. App. 142, 12 S. W. Rep. 736; Sansbury v. State, 4 Tex. App. 99. "Money," when not specially defined, must be taken and construed in the sense in which it is usually understood in common language, taking into consideration the context and the subject-matter relative to which it is employed; but, when that term is specially defined, it shall be understood in that sense, although it be contrary to its usual meaning. Pen. Code, art. 10. The term "money" has no general definition set out in our Codes, either Penal or the Criminal Procedure. With reference to certain offenses it has been specially defined. Id. arts. 789-792. With reference to the offense of embezzlement, it has a specially defined meaning, and must be understood in the sense in which the legislature has defined it, and is as follows, to-wit: "The term `money,' as used in this chapter, includes, besides gold, silver, copper, or other coin, bank-bills, government notes, or other circulating medium current as money; and the term `property' includes any and every article commonly known and designated as `personal property,' and all writings of every description that may possess any ascertainable value." Id. art. 789. These are the statutory definitions of the terms "money" and "property;" and they are very comprehensive, and relate to and are defined with special reference to the offense of embezzlement. "Money" is the general term, and includes all the species mentioned in its definition, when embezzlement is the matter under investigation. When the indictment charges the embezzlement of "money" in its generic sense, and no further description is given of the said "money," there is necessarily included in that term all of the different kinds of money set out in article 789 of the Penal Code. Under such allegation, the state can prove any character of money mentioned in said article. The money alleged to have been embezzled was sufficiently described in the indictment, and the court did not err in overruling the motion to quash.

Appellant's motion in arrest of judgment was based substantially upon the following grounds, to-wit: The indictment does not make it appear clearly who was acting "under the name of A. E. Livingstone," — Mrs. Sanders, the principal, or appellant the agent and attorney in fact; that the allegations do not make it clear that A. E. Sanders and A. E. Livingstone are one and the same person; that it is not alleged that the money alleged to have been embezzled was in the possession or under the care of the defendant, as agent and attorney in fact, at the time the same was embezzled and converted. The first two grounds may be treated together, and are based upon the parenthetical clause, "who appointed said O. P. Taylor her said agent and attorney in fact under the name of A. E. Livingstone," contained in the indictment. The pleader was seeking to allege that Mrs. A. E. Sanders gave the appointment to appellant, not under her name as A. E. Sanders, but under the name of A. E. Livingstone. This was not a necessary allegation; it was not an averment descriptive of any of the parties, either the principal or agent, nor of the offense itself; and did not add to nor detract from the relations the parties sustained towards each other, as principal on the one side, and agent on the other. It was simply the narration of a fact or incident not descriptive of any person connected with the offense, nor of the offense itself. It may be eliminated from the indictment without affecting it, or the status of the parties thereto, or their relations to each other. Unnecessary words or allegations do not vitiate an indictment, and may be rejected as surplusage. Recitals which are neither repugnant nor contradictory to the body of the indictment, and which do not render unintelligible any of the material traversable matters constituting the charge, may also be rejected as surplusage. Mayo v. State, 7 Tex. App. 342; Willson, Crim. St. § 1968. The parenthetical clause criticised by the appellant may be eliminated as surplusage, and yet leave the charge in the indictment complete in stating, by proper averments, the offense sought to be charged. But if this view be incorrect, still the indictment, upon this phase of it, is sufficient. It sufficiently alleges that A. E. Sanders, under the name of A. E. Livingstone, appointed appellant her agent and attorney in fact. The offense is charged with sufficient legal accuracy to prevent the defendant from being prejudiced in his defense, and the offense charged in the indictment is defined by such circumstances as will enable him, should it be necessary, to plead a previous conviction or acquittal of the same offense. Gay v. State, 2 Tex. App. 129. Tautology, repetition, bad spelling, incorrect grammar, and want of rhetorical exactness and finish, will not vitiate indictments, "unless the...