author: DAVIDSON, J.

text:
    Ex parte McDOWELL.
    (No. 3363.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    1. Habeas Corpus (§ 85) — Commitment oe Juvenile Delinquent — Presumption as to Judgment.
    Cn application for habeas corpus by one who had been committed as a juvenile delin•quent, and later ordered released by the same court, the judgments of such court are presumed to be correct.
    [Ed. Note. — Eor other cases, see Habeas Corpus, Cent. Dig. §§ 77, 78; Dec. Dig. § 85.] •
    ■2. Habeas Corpus (§ 102) — Delinquents— Commitment — Discretion oe Court.
    Acts 33d Leg. c. 112, amending Code Cr. Proc. 1911, art. 1203, authorizing the court tb •commit the care of a child, charged as a delinquent, to a probate officer or other proper person, or allow it to remain in its home, subject to visitation, or other proper conditions, or •committed to an institution, leaves the disposition of the child to the discretion of the court.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 87-89; Dec. Dig. § 102.]
    3. Habeas Corpus (§ 102

      ) — Juvenile Delinquents — Orders oe Commitment and Release.
    Where the court ordered a child committed for two years as a delinquent, under Acts 33d Leg', c. 112, amending Code Cr. Proc. 1911, art. 1203, and subsequently made an order releasing the child, it was entitled to release on habeas corpus; the second order being valid if the first was valid, and the detention being unauthorized if the first order was invalid.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. §§ 87-89; Dec. Dig. § 102.]
    4. Habeas Corpus (§ 44 — Jurisdiction-Juvenile Delinquent — Criminal Nature oe Proceedings — “Criminal Proceeding.”
    Proceedings for the commitment of one charged as a juvenile delinquent, under Acts 33d Leg. c. 112, amending Code Cr. Proc. 1911, art. 1203, are “criminal”, in their nature, so that the court of Criminal Appeals had jurisdiction of an application by the alleged delinquent for habeas corpus.
    [Ed. Note. — For other cases, see Habeas Corpus, Cent. Dig. § 35; Dec. Dig. § 44.

    For other definitions, see Words and Phrases, First and Second Series, Criminal Proceeding.]
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Application by Percy McDowell for writ of habeas corpus.
    ‘Applicant ordered discharged.
    Mays & Mays, of Ft. Worth, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Applicant is a boy 13 years of age. Substantially, the case is: Ete left the residence of his parents in Ft. Worth in company with two other boys, and was taken up in Bastrop county as a “delinquent” under Acts 33d Legislature, p. 218, § 9 (article 1203). The record also shows that the county attorney of Bastrop county filed a complaint and information charging the boy with being a delinquent child. A jury being waived, the court adjudged the boy a delinquent, and ordered him to be sent to the State Industrial School for Boys at Gatesville for a period of not less than two years. In accordance with this judgment the boy was carried to the State Industrial School for Boys and there incarcerated. The judgment was rendered on the 29th of August, 1914. On the following November 7th this order was set aside, upon a showing made by the parents satisfactory to the judge who rendered the original judgment, and he was ordered discharged from the State Industrial School for Boys and returned to his parents. This order of the court was disobeyed by the officers of said school.

While it might not be of any practical service in deciding the law question, still upon the showing to set aside the former judgment it was brought to the attention of the court in the application, which we suppose was supported by the facts, inasmuch as the judge granted the request, that the boy had always been an obedient boy at home, and his leaving home with the other two boys was his first dereliction. The complaint contained tlie allegation tliat lie was an “incorrigible,” in that lie “associated with thieves.” The evidence with reference to his two companions from whom he was taken at the time he was sent to the State Industrial School for Boys is not in the record; but taking the judgments of the court for what they convey on their face, and the allegations of the pleadings upon which the judgments were based, we are of the opinion that the court was correct in his last finding when he had the real facts with reference to the boy before him. Judgments of courts are presumed correct.

It is contended that the first judgment was void and the second legal, and if the first judgment was not void then the second was legal. Without going into a discussion of the constitutional questions, or how far the Legislature may go in defining what it takes to constitute a delinquent child, and the disposition to be made of him by the courts tinder that theory, we are of opinion that the Legislature had left it discretionary with the court trying the case as to the disposition of the child. Of course, legislation should be cautiously passed which undertakes to take from the parent or parents the custody of their children. It is striking close- at the bottom principle of society to take from the parents the custody and care of their children, and in the mind of the writer the facts ought to show first clearly and conclusively that the parents were not fit persons for raising their children. Society, it has been said, has a sufficient interest in the welfare of children to guard against viciousness in their training, by taking charge of them in early life and training them for their proper sphere in society; but this should always be done cautiously and carefully, and to the best interest of the children. Under article 1203, supra, it is provided that, in case of a “delinquent child” coming under the provisions of this law, the court may continue the hearing from time to time, and may commit the child to the care of the probation officer, or to the care or custody of any other proper person, and may allow said child to remain in its own home, subject to visitation of the probation officer or other person designated by the court, or under any other conditions that may seem proper to be found by the court; or the court may cause the child to be placed in the home of a suitable family, under such conditions as may be best for the child, or it may authorize the child to be boarded out in some suitable family, or the court may commit it to any institution in the county that may care for children that is willing to receive it, or which may be provided for by the state or county, suitable for the care of such children, willing to receive it, or of any state institution which may now or hereafter be established for boys or girls, willing to receive such child, or to any other institution in the state of Texas for the care of such children willing to receive it. The statute provides such order of the court committing such child to the care and custody of any person above set out, and the length of time and conditions of such commitment, shall be at all times subject to change by further orders of the court with reference to the child, and the court shall have the power to change the custody of the child, or to entirely discharge it from custody, whenever, in the judgment of the court, it is to the best interest of the child. The statute sets out various other matters in connection with the custody and care of the children, going into many details, whióli are unnecessary here to notice. The statute further provides that for the purposes herein mentioned the court shall always be in session. Article 1197, p. 215, defines the expression “delinquent child,” giving various and sundry reasons why the child may be a delinquent; and it further provides that it shall be proceeded against by complaint and information filed 'by the county attorney either in the district or county court, giving both courts jurisdiction.

It would seem from these provisions that the court trying the case has the right to control, manage, and direct the movements of the child, as well as those to whom he has committed the custody of the child. If the court had the authority to send the child to the Industrial School for Boys, then unquestionably he had the authority to make the second order—this by express provision of the statute. If he did not have the authority to do so, of course, the confinement of the child would be void. From either viewpoint this writ of habeas corpus should be granted, and the child discharged from the State Industrial School for Boys and turned over to the parents. That the court had the right to make the order setting aside the former order of the court is so by the same statute that gives that court the authority to make the original order.

There is a contention on the part of the respondent that this is purely a civil suit, and the writ of habeas corpus would not and should not be granted by this court, and would have no jurisdiction. The cases cited by respondent are not applicable to this case, and have really no bearing upon it. A “delinquent child” under this statute is defined to be any male under 17 or female under 18 years of age, who violates any laws of this state, or any city ordinance, or who is incorrigible, or who knowingly associates with thieves, or vicious or immoral persons, and who does a great many other things, and is to be proceeded against by complaint and information by the county attorney. He is to be charged in the complaint and information with some one or more of the matters containing the definition of a “delinquent child.” It is also provided that, when an indictment has been returned by the grand jury charging any male juvenile under the age of 17 years with felony, the parents, guardian, attorney, or next friend of such juvenile, or the juvenile himself, may file a sworn statement in court setting forth the age of such juvenile, at any time before announcement of ready for trial is made in the case. Then it provides that the indictment may be dismissed against him, and he tried in the juvenile court as a “delinquent child.” The punishment is to be not less than two years in the Industrial School for Boys. It would hardly need argument to sustain the proposition, we take it, that if a child is thus taken from its parents, 'or from the environments otherwise surrounding it, and incarcerated for not less than two years, that it would have a touch of criminal phase, because the acts for which he is taken are criminal. By the prosecution he is deprived of his liberty.

One of the main objects of our criminal laws is to suppress crime, and another is to reform the offender. The very basis of this law is the reformation of the child of his criminal acts and criminal tendencies, and training him up in the way he should go. The whole law is based upon crime or criminal tendencies. Under the civil laws in Texas, no one can be deprived of his liberty, nor can he be incarcerated in “ any sort of enforced confinement. Imprisonment or incarceration in the juvenile school is based upon the proposition of criminality. The delinquent child is placed there to reform him and get him away from evil habits and those acts, and to make a better man or woman of him or her. The writer does not care to go further into this matter. From any viewpoint of this record, the writ should be granted, and the child ordered restored to the parents. It is not intended by this decision to oust the court at Bastrop of its jurisdiction of the child, but to place it under the second order of that court.

The applicant is ordered discharged under the terms of this opinion.


source: Caselaw Access Project

license: Public Domain

text:
    WADE v. STATE.
    (No. 3362.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    1. Criminal Daw (§ 598) — Continuance— Diligence.
    Where accused was denied subpoena for a witness because the state had already subpoenaed him, whatever diligence the state used would be sufficient for accused, moving for continuance for the absence of such witness.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1335-1341; Dec. Dig. § 598.]
    2. Criminal Law (§ 595) — Continuance— Materiality of Evidence.
    Where, in a prosecution for assault to murder, the state relied on the theory that defendant was prevented from shooting the assaulted party by F. taking the gun away from him, a showing, on a motion for continuance, that F. would testify that the gun was not cocked and was not pointed towards such party was material, and ground for continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1311, 1323-1327; Dec. Dig. § 595.]
    3. Criminal Law (§ 596) — Continuance-Cumulative Evidence.
    The doctrine of cumulative evidence does not apply on a first application for a continuance.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1328-1330; Dec. Dig. § 596.]
    4. Criminal Law (§ 917) — New Triai^-Re-fusal of Continuance.
    An unwarranted refusal of a continuance is ground for new trial.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2161, 2162; Dec. Dig. § 917.]
    5. Homicide (§ 158) — Threats—Admissibility.
    In a prosecution for assault to murder, a statement by accused that he was going to kill a red-headed, freckled-face s- of a b- — •, is inadmissible, where there was no evidence pointing the threat towards the assaulted party.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. §§ 293-296; Dec. Dig. § 158.]
    Appeal from District Court, Cherokee County; Lee D. Guinn, Judge.
    Bob Wade was convicted of aggravated assault, and he appeals.
    Reversed and cause remanded.
    Norman, Shook & Gibson, of Rusk, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   DAVIDSON, J.

Under a charge of assault to murder, appellant was convicted of an aggravated assault.

When the case was called for trialj he moved for a continuance on account of the absence of the witness G. T. Tarrant, who was shown to be in Laredo, sick and unable to attend court. It is further shown that, when appellant asked for process, it was refused on the ground that the state had already summoned him. Of course, under this state of facts, appellant would rely upon the diligence of the state to have the witness present, and whatever diligence was used for the state would be ample for the appellant. The witness disobeyed the subpoena because of his inability to be present at court. He was temporarily at Laredo; had gone on business to Mexico, and en route home was taken sick; otherwise, he would have been in attendance upon court. He is shown to have been an eyewitness to the alleged assault, and assisted in taking the gun from appellant at the time. The state relied upon the theory that defendant undertook to shoot Ferguson, the alleged assaulted party, and was prevented by taking the gun from him. Among other things the state claimed that he pointed the gun at Ferguson, it was loaded, and he was thus prevented from shooting. Tarrant’s testimony would have been in direet conflict with the state’s case on the material facts. He would have testified, if present, that appellant did not point the gun at Ferguson, nor was it cocked at the time. This was very material testimony. This was the first application, and the doctrine of cumulative evidence does not apply. He was entitled to the continuance, and it was error to refuse it. These matters were all brought out in the motion for new trial. Plaving refused the continuance, a new trial should have been awarded.

There is another question to which we call attention: The state was permitted, over objection, to prove that appellant stated he was going to kill “a red-headed freckled-face son of a bitch.” Appellant objected to this, because it did not individuate or point out Ferguson as coming within the designated class, and as it did not .individuate him, but was a general threat, it should not have been introduced. We are of the opinion that under the authorities the proposition as presented is well taken. If the state could show that this threat was intended as against Ferguson, it would be admissible; but, until this has been done, such general threat is not admissible. A great number of cases could be cited, but it is unnecessary.

The judgment is reversed, and the cause remanded.


author: DAVIDSON, J. HARPER, J.

text:
    BODKINS v. STATE.
    (No. 3254.)
    (Court of Criminal Appeals of Texas.
    Oct. 28, 1914.
    On Motion for Rehearing, Dec. 2, 1914.
    Further Rehearing Denied Jan. 6, 1915.)
    1. Bail (§ 64) — Defective Recognizance.
    Where a criminal appeal recognizance does not conclude with the words “in this case,” as required by statute, the appeal will be dismissed.
    [Ed. Note. — For other cases, see Bail, Cent. Dig. § 278; Dec. Dig. § 64.]
    On Motion for Rehearing.
    2. Adultery (§ 13) — Admissibility of Evidence-Prior Acts.
    Where defendant’s niece by marriage, with whom he was alleged to have committed adultery, testified that the acts of intercourse had been going on for two years prior to a date within the period of limitations, the admission of the evidence was not error as testimony of acts the prosecution for which was barred by the statute, where the court charged that there could be no conviction for acts committed more than two years prior to the finding of the indictment.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 28-30; Dec. Dig. § 13.]
    3. Adultery (§ 13) — Admissibility of Evidence-Birth of Child.
    In a prosecution of defendant for adultery with his wife’s niece, who had been living in his home, evidence that the girl had gone from defendant’s home to a home for fallen girls and had there given birth to a baby is admissible, when limited to the issue whether the niece had had intercourse with some man.
    [Ed. Note. — For other cases, see Adultery. Cent. Dig. §§ 28-30; Dec. Dig. § 13.]
    4. Witnesses (§ 277) — Cross-Examination of Accused — Scope of Direct Examination.
    Where one accused of adultery with his wife]s niece admitted that she had been living in his home, but denied having intercourse with her, and introduced testimony reflecting on her good name, he can be asked on cross-examination whether he knew of any reason why she would falsely testify against him.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 925, 979-983; Dec. Dig. § 277.}
    5. Criminal Law (§ 720) — Trial—Misconduct of Prosecutor — Argument.
    Where the evidence showed that defendant had begun to have intercourse with his wife’s-niece when she was only 14 years old, but that the county attorney did not learn of it until more than one year after she became 15, argument by the county attorney that defendant could and would have been prosecuted for rape if his crime had been detected before the statute of _ limitations had run was a comment on the-evidence, and not error, especially where no-special charge in regard thereto was requested.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1670, 1671; Dec. Dig. § 720.]
    6. Criminal Law (§ 841) — Appeal — Objections to Charge — Time for Making.
    Objections to the court’s charge in a criminal prosecution which were made after the charge had been read to the jury need not be considered.
    [Ed. Note — For other eases, see Criminal Law, Cent. Dig.'§ 2022; Dec. Dig. § 841.]
    7. Adultery (§ 15) — Instructions—Name of Defendant’s Wife.
    Where an indictment for adultery alleged-the name of defendant’s wife, and it was conclusively shown that defendant was married and living with his wife at the time of the acts charged, an instruction that did not require the-jury to find that he was married to the person named in the indictment was not erroneous.
    [Ed. Note. — For other cases, see Adultery,. Cent. Dig. §§ 34-36; Dec. Dig. § 15.]
    8. Adultery (§ 7) — Indictment — Name of-Defendant’s Wife.
    In an indictment for adultery, an allegation of the name of defendant’s wife is sur-plusage.
    [Ed. Note. — For other cases, see Adultery,. Cent. Dig. §§ 12-16; Dec. Dig. § 7.]
    9. Lewdness (§ 1) — Elements—“Living Together.”
    Evidence of adultery between defendant and his wife’s niece, who was living in his home, authorizes a conviction of adultery b.v “living together” contrary to Pen. Code 1879} art. 333; since it is not necessary to constitute that offense that the parties live together as man and wife, but only that they live together and have intercourse.
    [Ed. Note. — For other cases, see Lewdness, Cent. Dig. §§ 1-^1; Dec. Dig. § 1.]
    10. Adultery (§ 14) — Evidence—Corroboration of Accomplice.
    In a prosecution for adultery, evidence that defendant had tried to get the girl’s brother to induce her to withdraw her charge, agreed to-give her money and to marry her, and had stated that he knew he had done wrong and wanted to show he was a man, is sufficient corroboration of the testimony of the accomplice.
    [Ed. Note. — For other cases, see Adultery, Cent. Dig. §§ 27, 31, 32; Dec. Dig. § 14.]
    Appeal from Tarrant County Court; T. W. Simmons, Special Judge.

      'S. T. Bodkins was convicted of adultery, and lie appeals^
    Appeal dismissed, but reinstated on motion for rebearing, and judgment affirmed. ,
    Poulter & Johnson, of Ft. Worth, for appellant. O. E. Lane, Asst. Atty. Gen., for the State.

       For other oases see same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes-

   DAVIDSON, J.

The Assistant Attorney General moves to dismiss this appeal because of the insufficiency of the recognizance. We find that his motion is well taken. It does not comply with that part of the statute which requires the form of the recognizance to conclude with the words “in this case.” Quite a number of cases have been dismissed upon this omission in the recognizance, and, following those cases, the motion will be granted, and the appeal dismissed.

On Motion for Rehearing.

HARPER, J.

This case was dismissed on account of insufficient recognizance, but appellant has filed a sufficient recognizance and the case is now reinstated. Appellant was convicted of adultery, and his punishment assessed at a fine of $1,000 — the maximum punishment authorized by law.

The prosecuting witness is named Annie Lee Heather. Appellant married her aunt, and .when Annie Lee’s father and mother died, Annie Lee went to live with appellant and his wife; she then being only 8 years old. Appellant cared for her, sent her to school, and she continued to reside with appellant and his wife for about 8 years, when appellant’s wife died. Annie Lee was pregnant at the date of the death .of her aunt, and shortly thereafter left appellant’s home and went to the Virginia Kate Johnson Home, at Dallas, a home for fallen girls, where she gave birth to a baby on the 14th day of last March. She testified appellant began to have intercourse with her when she was 14 years old, and continued to do so for about 2 years, the last act of intercourse taking place in June of last year; that she could, not say how often he had intercourse with her during the 2 years, but it occurred on an average of about twice a month.

The indictment in this case was returned February 18, 1914, and appellant objected to the witness being allowed to testify that the acts of intercourse had been going on for 2 years prior to June, 1913, as a portion of such acts would be barred — that is, all acts that occurred prior to 2 years before the return of the indictment. As the girl by her testimony would show that the acts were begun while she was only 14 years old, and continued for 2 years, up to June 18,' 1913, there was no error in admitting the testimony. Of course, he could not be convicted of any offense that occurred more than 2 years prior to the filing of the indictment, and the court in his charge so informed the jury, but, when the witness had testified to a course of conduct within the period of limitation that would authorize a conviction, there would be no error in permitting her to state how long such course of conduct had continued. He also objected to her being permitted to testify that she had' never had intercourse with any other man. Owing to the cross-examination of appellant, .this testimony became material and admissible.

It further appears that, when the county attorney’s office learned of the condition of the girl, the county attorney had her summoned to appear before him; that this was in February, and after this she did not live at appellant’s house any longer; and that she then went to the Virginia Johnson Home, in Dallas, a home for fallen girls, and while there had given birth to a baby. Appellant objected to this testimony, claiming that it would be prejudicial to him. Certainly it was permissible for the girl to say when she left appellant’s home, and it was not error to permit her to say where she was staying, and it was perfectly permissible in a case of this character for her to state that she had given birth to a baby. Snodgrass v. State, 36 Tex. Cr. R. 211, 36 S. W. 477. The court, at the time he admitted the testimony, stated he would admit it on the issue of whether or not she had had intercourse with some one, and limit it to that purpose alone. The fact that the prosecuting witness was an inmate of the home for fallen women, and had there given birth to a baby, would not tend to prove whether or not appellant had been guilty of adultery with this girl, and, if the remainder of the testimony convinced the jury beyond a reasonable doubt that he was guilty of adultery with her, the fact that these circumstances might cause them to assess a heavier punishment would not render them inadmissible; for, if appellant was guilty of adultery as charged, it was his acts which brought about the condition.

Appellant testified in his own behalf, and admitted that the girl had been an inmate of his home ever since she was 8' years old (some 8 years), but denied emphatically that he had ever had an act of intercourse with her. He introduced testimony tending to reflect on the girl’s good name, and, while he was testifying, he was asked if he knew of any reason why the girl would come here and testify falsely against him, and he answered that he did not. If he had known any reason it would have been, admissible, as tending to show the motive of the girl, and as he, by the testimony introduced by him, attempted to so severely assail her, there was no error in permitting the question to be asked.

The girl’s testimony, if true, showed that appellant had begun to have intercourse with her when she was 14 years of age, and had continued until about the time she was 16 years old. Appellant complains that tlie county attorney, in addressing the jury, said:

“It may seem surprising to you that this defendant is not prosecuted for. rape — a felony. He might have been prosecuted for rape, instead of adultery, if limitation had not run against the rape case; in fact, he should have been prosecuted for rape, for the evidence, in this case makes out a case of rape, and it is lucky for him that his crime was not detected before the felony case was barred by limitation; and under these circumstances any fine or even a jail sentence is too light for this defendant, and if the county attorney’s office had known about it sooner he would have gone to the penitentiary:”

The bill shows these remarks were objected to, and the court orally requested to instruct the jury not to consider them, but no written instruction in regard thereto was prepared and submitted to the court. Appellant earnestly insists this is error, and such error that it should result in a reversal of the ease, even though he asked no written instructions in regard thereto, and cites us to the case of Smith v. State, 44 Tex. Cr. R. 142, 68 S. W. 906, and other cases, wherein it is held:

“The rule has been laid down that, in cases of this character, counsel could not be too careful, in the discussion of the ease, not to travel out of the record, and especially should scrupulously avoid any improper or unfair means to secure a conviction.”

This rule of law we heartily indorse and would reiterate; but did counsel in this case, by the use of these remarks, “travel outside of the record?” The girl’s testimony shows that the acts of intercourse began when she was only 14 years of age. If her testimony was true, this would constitute rape, and the remarks of the county attorney in so stating were within the record. Also the testimony shows that the first intimation the officers had was in February, 1913, when the girl was past 16 years of age, and, as the law prescribes that a prosecution for rape must be brought within a year, and, if an act of intercourse had occurred within a year prior thereto, she was more than 15 years old at the time, consequently a prosecution for rape was barred, and shown to be barred by the testimony on this trial. So the county attorney was merely commenting on the testimony introduced on the trial, and if appellant had prepared a special charge and presented it there would have been no error in refusing it; but especially does the bill present no error as he did not prepare and present any special charge in regard thereto.

There is a bill in the record complaining of the court’s charge in two respects, but the bill shows that it was after the charge had been read to the jury before any objection was made thereto, and we might for this reason refuse to consider such objections.

One of the objections is that, as the indictment alleged that appellant, at the time of his alleged acts of intercourse with the girl, Annie Lee Heather, was married to another person — to wit, Lillian Bodkins — the court’s charge was erroneous, in that it only required the jury to find that appellant was married to another person, and did not go further and require them to find that he was married to Lillian Bodkins. As there was no question raised as to this matter on the trial, and the proof conclusively shows that appellant married the aunt of the' prosecutrix in 1900, and continuously lived with her until her death, this would present no error. If there had been any question raised by the evidence that the woman alleged was not the wife of appellant, a more serious question might be presented.

However, it has been held by this court that the allegation of the name of the woman to whom the appellant is married is wholly' unnecessary to be stated in the indictment, and, if stated, may be treated as surplusage, and therefore not necessary to be proven. This identical question was presented in the case of Collum v. State, 10 Tex. App. 712, and the court held:

“In our opinion, it would be sufficient to allege in the indictment the lawful marriage to some other person, as set out in the statute, and the law only demands that proof be made that the party was lawfully married to some other person than the one with whom the adultery is charged, and it is not incumbent on the prosecution to either allege or prove the name of the other person to whom on.e of the parties was lawfully married. We therefore conclude that the question raised on the subject of the testimony of the name of this other person was wholly unimportant and immaterial, and an unnecessary consumption of time. This portion of the indictment, not being necessary to the description of the offense, might properly be treated as surplusage.”

Besides this, the testimony of Mrs. Ma-honey shows that appellant’s wife was named Lillian Bodkins.

The only other complaint is that the court erred in submitting the first count in the indictment, wherein it charged a “living. together.” These words have been defined by this court in the case of Bird v. State, 27 Tex. App. 637, 11 S. W. 641, 11 Am. St. Rep. 214:

“In the case before us the defendant stands convicted of adultery, committed in the first mode named in article 333, by living together with one Ida Smith, and having carnal intercourse with her. To support such conviction it was essential that the state should prove not only that the parties had carnal intercourse with each other, but also that they lived together. A ‘living together’ is not defined by the Oode. These words are therefore ‘to be taken and- construed in the sense in which they are understood in common language, taking into consideration the context and subject-matter relatiye to which they are employed.’ Penal Oode, art. 10. Guided by this rule of construction, we are of the opinion that the term ‘living together,’ as used in articles 333 and 337 of the Penal Code, means that the parties must dwell or reside together — abide together in the same habitátion as a common or joint residing place. This interpretation of the term is more restricted than has been given to it in decisions made under the former statutes. Swancoat v. State, 4 Tex. App. 105; Parks v. State, 4 Tex. App. 134.”

This ruling has been approved in Burnett v. State, 44 Tex. Cr. R. 226, 70 S. W. 207, and other eases. Appellant’s contention seems to he that they must have been living together as man and wife to constitute a “living together,” as used in the Code. This has been decided adversely to his contention in the case of Shaw v. State, 49 Tex. Cr. R. 379, 91 S. W. 1087, wherein it was held:

“The charge is that appellant and Coons wer§ committing adultery ‘by living together.’ A special charge was requested to the effect that, in order to constitute this offense as charged, ‘the parties must live together as man and wife,’ which was refused by the court. It is not necessary that the parties should ‘live together as man and wife’ in order to constitute adultery under this phase of the statute. Bird v. State, 27 Tex. App. 635 [11 S. W. 641, 11 Am. St. Rep. 214]; Massey v. State, 65 S. W. 911. It is only necessary that they live together and have intercourse; it need not be such a living together as man and wife.”

The only charge requested and not given was a request for peremptory instructions, and the court did not err in refusing it.

The only other complaint is that, while the testimony of Annie Lee Heather might make a case, she being an accomplice in law, her testimony must be corroborated. The court so instructed the jury, giving appellant’s special charge on this issue, and we think the evidence is sufficient to corroborate her testimony to the extent required by law. In addition to other facts and circumstances in evidence, Carl D. Heather testified:

“I had a conversation with this defendant with reference to this matter; the exact time I do not remember, but it was in Dallas on Sunday. He met me and paid my way over there, and I came and he met me there. He tried to get me to make my sister make a statement that she had made a false statement against him to the county attorney and one to his lawyers, and he said he would give me something like $200 or $300 in her behalf, and would contribute $25 or $50 a month and support her; that he knew he had done wrong, and wanted to show me that he was a man, and said that he would meet her in Waxahachie later and marry her, and take her and take care of her if I said so.”

The judgment is affirmed.


author: PRENDERGAST, P. J. DAVIDSON, J. I DAVIDSON, J.

text:
    ADAMS v. STATE.
    (No. 3207.)
    (Court of Criminal Appeals of Texas.
    Dec. 9, 1914.
    Dissenting Opinion Dec. 14, 1914.
    Rehearing Denied Jan. 6, 1915.)
    1. Embezzlement (§ 14) — “Agent”—Trustee of School District.
    Two of three trustees of a school district determining that a school building should be repaired may lawfully delegate to one of the trustees the duty of carrying out the work, so as to constitute the trustee an “agent” within Pen. Code 1911, art. 1416, making it embezzlement for an agent to convert money of his principal, etc.
    TEd. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 13-15; Dec. Dig. § 14.

    For other definitions, see Words and Phrases, First and Second Series, Agent.]
    2. Embezzlement (§ 21) — Trust Relation-Money of School District.
    Trustees of a school district delegated one trustee to look after the repairs of a schoolhouse, and to sign their names to vouchers to be presented to the' superintendent for approval before the depository of the school money was authorized to pay it. The trustee made an oath to a voucher, which the superintendent approved, and the depository paid the money, which was converted by the trustee. Seld, as there was no law requiring an affidavit to the vouchers, and as any want of authority to sign the vouchers had been ratified by the subsequent action of the other trustees, that the money came into the hands of the trustee rightfully, and hence he was guilty of embezzlement under Pen. Code 1911, art. 1416.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 24-29; Dec. Dig. § 21.]
    3. Embezzlement (§ 14) — Money of Principal — School Districts.
    Inasmuch as the trustees had complete control over the money, though it belonged to the particular school, as was alleged, and could only be paid out by the depository on their order, it was their money, and the accused trustee was their agent under Pen. Code 1911, art. 1416, making it embezzlement for an agent to convert money of his principal.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 13-15; Dec. Dig. § 14.]
    4. Embezzlement (§ 14) — School Trustee— Voucher Discounted by Bank.
    Where such trustee, after getting approval of a voucher, had it discounted at the depository bank, because there was not enough school money to pay the voucher, the money he received was nevertheless school money, the bank thereafter appropriating such money as it came in to pay the voucher, and the trustee was properly convicted of embezzlement under Pen. Code 1911, art. 1416.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 13-15; Dec. Dig. § 14.]
    Davidson, J., dissenting.
    Appeal from District Court, Newton County; A. E. Davis, Judge.
    John Adams was convicted of embezzlement, and he appeals.
    Affirmed.
    Wightman & Hancock, of Newton, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.

      For other cases see same topic and section NUMBER, in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PRENDERGAST, P. J.

Appellant was convicted of embezzlement and assessed the lowest punishment. He made a motion to quash the indictment on various grounds. He also excepted to the court’s charge, and to the refusal of the court to give his special charges, based, practically, on the same grounds as his motion to quash. It will be wholly unnecessary to take up each of these matters specially; they can and will be all considered and disposed of in the opinion. The facts are established practically without any conflict.

In Newton county there was a common school district No. 10. In that district there were two common schools; one for white children, the other for colored children. There were three trustees for this district and these schools — J. G. Cole, J. W. Robinson, and appellant. Our law made these trustees “a body politic and corporate in law.” Revised Civil Statutes, art. 2822. All sehoolhouses and other property belonging to said School district by law were placed under their control and management. R. S. art. 2847. All school funds of such district were required to be kept in the county depository and paid out on order of said trustees, approved by the county superintendent. R. S. art. 2856. The trustees alone were authorized to expend the money (Collier v. Peacock, 93 Tex. 259, 54 S. W. 1025), and the depository could not pay it out, except on warrants drawn by such trustees (R. S. arts. 2768, 2856). The trustees were expressly by law authorized to expend said district school money for purchasing appliances and supplies, repairing the schoolhouses, and for other purposes necessary to the conduct of the public schools to be determined by the trustees. R. S. art. 2772. The Newton County Bank at Newton, in said county, was the depository of the school fund of said county and district.

In September, 1913, said trustees determined that certain repairs on the sehoolhouse of said colored school building and supplies for that school were necessary to be made and had before the opening of that school in October or November following. Thereupon they, or said Cole and Robinson, two of them, designated and authorized appellant to procure the material and have said repairs made on said colored sehoolhouse, and to procure the necessary supplies therefor, and to pay the public school money belonging to said district and school for the same, and for that purpose gave him authority to get the money, by signing their names to a proper voucher, take charge of it, and pay it out, and he undertook to do so in compliance with this authority, agency, and employment. Eor the purpose of procuring the money to pay for said repairs and supplies, they also authorized him to make out the proper voucher, sign their names thereto as trustees, and procure the funds from the depository for that purpose. Thereafter, on October 20, 1913, appellant made out a voucher, check, or draft on said depository, requiring it to pay to his order $376 for repairs and supplies for said colored school in said district, and signed thereto the names of Said Cole and Robinson as trustees for said school district. They had expressly authorized him to sign their names to such voucher, draft, or check. He presented this to the county superintendent, swore to it, and the superintendent thereupon officially approved the same for said full, amount. Thereupon he took it and personally presented it to the depository for payment out of the school fund belonging to said district and colored school. There was not at that time sufficient funds to the credit of that school to pay it off in full. How much there was in the depository at that time is not shown. The cashier of the bank, for appellant, discounted the said voucher, cheek, or draft $18.80, and paid him $357.20. Appellant claimed that he paid out $80 of said money for lumber to make the repairs on said school building. It was clearly established without controversy he did not pay $80 therefor, but paid only $41.30. He claimed that he paid $42 for labor to have said repairs made; he paid actually only $36.75. He claimed to have paid $4 for nails; whereas he paid only $2.60, or less. He claimed he paid $32 for hauling said lumber ; in fact, he paid only $20, and at least $8, if not $12, of that was paid to himself for hauling. He paid himself $20 of it, which he claimed was for five trips that he personally made to different places on business for said school in making said repairs and purchasing said supplies; that he paid $20 of it for janitor servicé ■■ (it seems for some other school), and either $36.11 or $3S.-71 for books (it seems this was for some other school). Conceding, however, that all of these latter items were proper charges against said colored school, and properly paid out by him as such, and allowing $38.-71 for boobs, instead of $36.11, it shows that he actually paid for all of said material, repairs, labor, books, etc., only $179.36, and that he fraudulently embezzled, misapplied, and converted $196.64 of said money to his own use and benefit, or deducting the $18.80 discount on the' draft, it shows that he embezzled, etc., $177.84. Without contradiction it was shown that he paid a note of his deceased son at said bank of $142.45 with said money at the time the money was turned over to him. Each of the trustees Cole and Robinson testified positively that said misappropriation of said money was without their knowledge or consent, and that they gave him their consent only to pay said money for the material for said repairs, the labor, etc., on said colored building and for the supplies therefor. It is further shown by the uncontroverted evidence that the money he received on said draft was paid to him and received by him as the school’s money that belonged to that district and school, and that, while all of the money at the time the bank paid it to him was not on deposit to that school fund, yet that the money soon afterwards did come into the depository, and the said draft, voucher, or whatever it may be called, was actually charged to said fund, and there can be no question but that in reality the money that he got and embezzled was the school money of that school.

The indictment avers:

That appellant, on or about October 20, 1913, “was the agent and employe of J. C. Cole and J. W. Robinson, trustees in and for common school district No. 10 in Newton county, Tex., and trustees for Oak Grove Colored School No. 2 in said common school district No. 10 in Newton county, Tex.; and the said John Adams did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of the said J. C. Cole and the said J. W. Robinson, trustees aforesaid, and without the consent of any one else legally authorized to give such consent, and without the consent of any one authorized to give the consent of Oak Grove Colored School No. 2 in common school district No. 10 in Newton county, Tex., certain money, the same then and there being the corporeal personal property of and belonging to Oak Grove Colored Schoól No. 2 in common school district No. 10 in Newton county, Tex., and which said money was under the supervision and control of the said J. C. Gole and the said J. W. Robinson for said school aforesaid, to wit, $60 in money, current money of the United States, of the value of $00, and which said money had theretofore come into the possession of, and was then and there under the care of, the said John Adams by virtue of his said agency and employment.”

The statute is (1?. O. art. 1416):

If any agent of any incorporated institution or any agent or employé of any private person shall embezzle, fraudulently misapply, or convert to his own use without the consent of his principal or employer any money or property of such principal or employer which may have come into his possession or be under his care by virtue of such agency or employment, he shall be punished, etc.

Appellant made a motion to quash said indictment, contending:

(1) That it charged no offense; (2) that it alleged he was the agent and employé of Gole and Robinson, and it nowhere alleged that the owner was his principal; (S) it failed to allege any state of facts which shows any trust relation between said school and him; (4) it shows that, if he received any money of said colored school, it was unlawfully paid to him, and no trust relation could therefore exist; (5) it shows that Gole and Robinson had control of the funds of said colored school, which allegation is contrary to law, and not in accord with the legal authority of said trustees; (6) it alleges that he was the agent and employé of Cole and Robinson, and that he fraudulently embezzled, etc., $60 in money, which was the personal property of and belonged to said colored school, and nowhere alleges that he embezzled, etc., any money of his alleged principal, but alleged' that he embezzled, etc., money belonging to said colored school, and he is not charged in the indictment to bear any fiduciary relations to said school; (7) it alleged that he was the agent and employé of the school trustees of said colored school; and (8) the trustees of said colored school had no right under the law to collect and have under their supervision and control any money belonging to said school, and to deliver it to defendant or any other person as their agent and employé.

We have given the substance of each of his objections to said indictment. Not one of them is good.

The indictment follows substantially and completely the statute and the form for such indictment thereunder as prescribed by Judge White in his Annotated Renal Code, §§ 1624-1627. Analyzing the indictment and measuring it up with the law, it avers, in substance and in effect, that the trustees of said school was an incorporated institution — a body politic and corporate in law. The law so made said trustee (R. S. art. 2822); that he was their agent and employé; that he fraudulently embezzled, etc., said money without their consent, and without the consent of any one else legally authorized to give it, and without the consent of any one authorized to give the consent of said colored school and district; that the money was the property of, and belonged to, said school, but it was under their supervision and control for said school; and that the same came into appellant’s, hands by virtue of his said agency and employment. Therefore all the requisites of the statute and the decisions were alleged which were necessary to allege the offense. See some of the cases cited by Judge White in; sections 1626 and 1625 of his Annotated Penal Code. The money-, as alleged in the indictment, belonged to, and was the property of, said school in said district. The bank was the depository, but the disposition and paying out of the funds was exclusively under the control of the trustees. Code Or. Proc. art. 457. The bank (depository) could not legally pay it out otherwise. Where three persons constitute a corporation, any two of them can act as the corporation, and their act as such is the act of the corporation. There is no law that requires all three of the trustees of a school district who compose the corporation to do any official act.

The court gave a full, fair, and complete charge under the law and in accordance with the questions raised by the evidence. In submitting the case for a finding the court told the jury:

“If you believe from the evidence beyond a. reasonable doubt that the defendant, John Adams, on or about the 20th day of October, A. D. 1913, in the county of Newton and state of Texas, was the agent and employé of J. O. Gole and J. W. Robinson, trustees, in and for common school district No. 10 in Newton county, Tex., and trustees for Oak Grove Colored School No. 2 in said common school district No. 10 in Newton county, Tex., and the said John Adams did then and there fraudulently embezzle, misapply, and convert to his own use without the consent of the said J. O. Cole and the said J. W. Robinson, trustees aforesaid, and without the consent of any one else legally authorized to give such consent, and without the consent of any one authorized to give the consent of Oak Grove Colored School No. 2 in common school district No. 10 in Newton county, Tex., certain money, the same then and there being the corporeal personal property of, and belonging to, Oak Grove Colored School No. 2 in common school district No. 10 in Newton county, Tex., and which said money was under the supervision and control of the said J. 0. Gole and the said J. W. Robinson, trustees for said school aforesaid, to wit, $50 or more than $50 in money, current money of the United States of the value of $50 or more than $50, and which said money had theretofore come into the possession of, and was then and there under the care of, the said John Adams by virtue of his said agency and employment as aforesaid, then you will find the defendant, John Adams, guilty as charged.”

Then in a separate and. distinct paragraph he submitted the converse of all this, telling the jury that, if they did not believe beyond a reasonable doubt each of the said essential matters required in the charge copied, to acquit him.

Appellant objected to the court’s charge on-these grounds: (1) It does not define any offense; (2) wherein the court uses these words, “J. O. Gole and J. W. Robinson, trustees,” it was upon the weight of the evidence, and assumed that they were acting in their official capacity as such trustees; (3) he-claims these words in said charge, “which said money was under the supervision and control of the said J. C. Cole and the said J. W. Robinson, trustees,” assumed that said money was legally in their hands as trustees alone, claiming that there was no evidence to show that said money had ever legally been in their care and control, and that said money, if any, was under appellant’s absolute care and control; (4) because the charge did not tell the jury that the school board, nor any of the trustees, had no authority to delegate any of their official duties to a third person, and, if appellant was acting under such attempted delegation of authority, they should acquit him; (5) because it did not tell the jury that appellant was one of the trustees of said school, and, as such, he had received funds alleged to have been embezzled by him and to acquit him; (6) because it did not tell the jury that, unless they found that a voucher or warrant was duly drawn on the funds of said school, after an account was duly approved showing the amount named in it was due and payable as a valid claim against said school, and before such account could be lawfully allowed and paid, it must have been approved by the trustees, and, unless it did so, the money alleged to have been embezzled by him came into his hands without warrant of law, and he should be acquitted ; (7) because it did not instruct the jury that, unless they should find beyond a reasonable doubt that there were sufficient funds of said school to its credit at the time of the issuance of the warrant to pay it in full, to acquit him; (8) because it did not instruct the jury that, upless they believed beyond a reasonable doubt that Cole and Robinson did in person and as trustees of said school approve the account for which the warrant was drawn, to acquit him; and (9) because the court did not instruct the jury that, if the amount embezzled was less than $50, it would be only a misdemeanor, and the court did not in that event inform the jury what their verdict should be. lie then requested several special charges presenting, in effect, the same questions substantially as he had objected to the court’s main charge not submitting. In our opinion, none of appellant’s exceptions to the court’s charge present any error, and, in consequence, the court did not err in refusing all of his special charges. We think it unnecessary to discuss, these matters seriatim.

We do not understand that Cole and Robinson delegated unlawfully their power and authority to. appellant. All three of the trustees determined that certain repairs on said school building and supplies for the school were necessary to be had, and they determined to have this done. The three were necessarily not expected to buy the supplies, the material for the building, nor do the work thereon. They could, or any two of them could, as they did, make appellant their agent for carrying out and doing, these things, which all three of them had determined should be done, and directed that appellant should do it, or have it done. Neither do we understand that they delegated any illegal power or authority to him when they told him to sign their names to the proper voucher to get the funds to do this identical work and furnish the supplies that they had determined and directed should be procured and done, and that he should thus get the school money and therewith pay for same. Even if it had been improper for them to have directed him to sign their names to the voucher, they afterwards clearly ratified and approved it by their action, and through that means he got the money of the school for the specific purpose determined upon, and clearly embezzled nearly $200 of it. The evidence, without contradiction, shows that, when he presented the voucher to the superintendent for his approval, he swore that it was correct, and the superintendent so certified, and thereupon approved the voucher. We know of no law which requires any one who has an account against a public school (¿strict to make an affidavit to the claim, as contradis-tinguished from making an oath thereto. The fact is we know of no law that requires any one to make either an oath or an affidavit to any such claim. It requires the county superintendent to approve vouchers legally drawn on the school fund. R. S. art. 2756. Neither does the law prescribe any form whatever for such a voucher, but in this instance, as shown above, the voucher was drawn in just such way as it occurs to us it should have been drawn, so far as its form was concerned, and it was an amply sufficient voucher for the depository to pay and charge to the school fund as it did. Even if an oath was necessary, the testimony, without contradiction, shows that that was made by Adams at the time and before the superintendent approved it. He swore to it. It was not necessary that-he should sign any affidavit. Ewing v. State, 38 S. W. 618; Morris v. State, 2 Tex. App. 503; Shelton v. Berry, 19 Tex. 154, 70 Am. Dec. 326; Crist v. Parks, 19 Tex. 234; Alford v. Cochrane, 7 Tex. 487; Anderson v. Cochran, 93 Tex. 583, 57 S. W. 29.

As shown above, we think it immaterial whether or not all of the money was in the depository to the credit of that fund at the time to pay off the voucher to appellant. All the parties treated the money procured by appellant at the time as the school money. That part of it which he did pay for proper expenses of the school was paid as school money on proper school debts duly authorized to be made. As soon as the balance of the funds belonging to that school came into the hands of the depository, the draft itself was charged against it and the money actually expended on the draft. At the time appellant got the money he got it and treated it as the money belonging to said school under his agency and employment by the other trustees. It had the effect, so far as the school was concerned and the trustees, of appropriating that much of the school fund to the payment of the draft as school money, and appellant got all of the money except the $18.80, which he paid to the bank in discount. It did not have to be the identical money received by the depository as the school money; in fact, the identical money is never kept, nor supposed to be, by the depository.

In Hitchcock v. City of Galveston, 96 U. S. 341, 24 L. Ed. 659, it was shown that the city council of Galveston determined to do certain street work. The city council thereupon directed its mayor and the chairman of the committee on streets and alleys to enter into and make a contract or contracts with the proper parties to do this work. The mayor and this committeeman did enter into contracts to have the work done and the material supplied. In that ease it was contended that the city council had no authority or power to delegate such power and authority to the mayor and this committeeman. In answering that contention, the United States Supreme Court said:

“It is true the council could not delegate all the power conferred upon it by the Legislature, but, like every other corporation, it could do its ministerial work by agents. Nothing more was done in this case. The council directed the pavements, ordering them to be constructed of one or the other of several materials, but giving to the owners of abutting lots the privilege of selecting which, and reserving to the chairman of their committee authority to^select, in case the lot owners failed. The council also directed how the preparatory work should be done. There was therefore no unlawful delegation of power. But, if there had been, the contract was ratified by the council after it was made.”

In Kramrath v. City of Albany, 127 N. Y. 575, 28 N. E. 400, it was shown that the city council of that city authorized a committee or agent to fit up and procure furniture for one of the rooms of a building to be used for the city because of the destruction by fire of its city hall. The committee did this. When pay was sought by the persons who had furnished the material,-it was claimed that the city council had no power or authority to delegate its power and authority to a committee. The court held:

“The principle of law is well established that public powers or trusts devolved by the charter upon the common council are to be exercised when and in such manner as it shall determine and cannot be delegated; in other words, the governing body of the city cannot confer upon one of its committees the power to perform acts which relate to the government of the city. But that principle has no application to this case. The leasing or furnishing of a room for the transaction of the city’s affairs is a mere business act, and in its power to perform it the city differs in no respect from an ordinary business corporation or an individual, and it may delegate the power to perform such acts to agents or committees. * * * It would hardly be practicable for all or a majority of the members of a common council to attend to the details of such purchases, nor can it be said to be unlawful for the committee to permit one or two of its members to make selection of the particular article of furniture required. And when the work and material have been actually ordered by the common council, and the city has had the full benefit of them without objection from any of its officers, very slight evidence is sufficient to support a finding that any irregularities in the committee’s action have been waived and their general acts ratified.” ' ¡

See, also, 28 Cyc. 648; Wright v. Jones, 55 Tex. Civ. App. 616, 120 S. W. 1140.

So in this case the ‘whole board of trustees — the three of them — had determined that certain supplies should be procured and certain improvements made on the school building of said school. It was wholly impracticable for all three of them to do this, or to personally see that it was done. They thereupon determined to have appellant, one of their number, as the agent of the other two, who constituted a majority of it, and as their employe, to procure these supplies and have this repairing done, and for that purpose they directed and authorized him to make out the voucher and sign their names to it to procure the money for that purpose, and for no other purpose. They did not thereby delegate to him powers that they could not. The signing of their names by him to the voucher on which he got the money was not a delegation to him of such power and authority as not to make the fund that he did get thereon the school fund. But, even if their act in this respect was beyond their power, they ratified and approved it; each one received $4 of the money from appellant for hauling a part of the material used to repair said building, and it enabled him to get the money, and he did get the money, and he embezzled it as shown above.

In our opinion, neither of the cases of Hartnett v. State, 56 Tex. Cr. R. 281, 119 S. W. 855, 23 L. R. A. (N. S.) 761, 133 Am. St. Rep. 971, Warswick v. State, 36 Tex. Cr. R. 63, 35 S. W. 386, nor Dickey v. State, 144 S. W. 271, have any application to this case.

In the Hartnett Case he was indicted for receiving money of the city of Beaumont in his official capacity as a police officer thereof, and he was indicted for embezzling the money that so came to his hands in his said official capacity. The proof showed that he had no power or authority as such city official to receive any fund whatever belonging to the city of Beaumont in his official capacity.

In the Warswick Case he was convicted for converting the money of the county of which he was county judge, alleging that he received it as such in his official capacity. The law neither authorized nor permitted him to receive any money for the county, and the case was reversed because he was indicted as receiving the money in his official capacity, and he had no power or authority to so receive it. In that ease, however, Judge Henderson, in rendering the opinion for the court, said:

“We would not be understood as holding that the commissioners’ court might not empower the county judge or any other person to receive 'money coming to the county for and on behalf ■of the county, but in such contingency the money or property would come to such person, not by virtue of his official capacity, but on account of his employment or agency.”

In the .Hartnett Case what Judge Henderson said was specially mentioned and approved. We think this applicable to the facts and law of this case. In the indictment in this case the question’s on which those cases were decided were expressly avoided. Apel-lant was not indicted for receiving and embezzling money which went into his hands in his official capacity, but as agent and em-ployé as distinguished in said cases.

In the Dickey Case he was indicted for receiving the money of the city of Waco in his official capacity as city secretary thereof. It was shown that he had no power or authority in his said capacity to receive any money whatever for the city, but, in fact, the laws of the city prohibited him from doing so. I-Ienee, as we say, neither of these cases have any application to this case, but what was said by Judge Henderson in the Wars-wick Case, supra, is exactly applicable and in point in this ease.

In our opinion, there is no reversible error in this case, and the judgment is ordered ■affirmed.

DAVIDSON, J. I

dissent. I do not believe the law or facts authorize the conviction.

DAVIDSON, J.

(dissenting).

When the opinion was handed down I entered a dissent, stating generally that the case ought to be reversed both on the law and the facts. Appellant is charged with embezzlement, in that he was the agent and employé of J. O. Oole and J. W. Robinson, trustees in and for common school district No. 10 in Newton •county, and trustees for Oak Grove Colored School No. 2 in said common school district No. 10 in Newton county, and he did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of said Cole and Robinson, trustees aforesaid, and without the consent of any one else legally authorized to give such consent, and without the consent of any one •authorized to give the consent of Oak Grove Colored School No. 2 in common school district No. 10 in Newton county, certain money, etc., which money was under the supervision and control of Cole and Robinson, trustees aforesaid.

This indictment was framed under article 1416 of the Revised Penal Code, defining the offense of embezzlement. Under that definition the relation of principal and agent or •employs must exist, and' always carries with it the idea of a fiduciary relation or status, .and ’ the offense cannot be without it. If •this relation does not exist, or the accused is not a principal or accomplice, aiding the. embezzler, then he is not subject to prosecution under that article. Under the facts appellant could'not be, and was not, an employs or agent of Cole and Robinson, and under the law could not be. He must be agent or employs, and must receive property in such capacity to constitute him an agent. They were all three trustees of the same school community, and held that position in a trust relation, officially. They could not delegate their authority, nor appoint agents to act in their stead or place. The statute does not authorize these officers to delegate their authority or appoint agents. The trustees, by virtue of their office had control, in a certain sense, of the school property situate in the school district, but could not qven sell it without an order of the commissioners’ court. It devolved upon them, as trustees, to have the property repaired or schoolhouses built, and to make contracts to that end. Articles 2772, 2844, and following articles, Rev. St. 1911. The statute does not authorize school trustees to hold, possess, or control school money.

The evidence incontrovertibly shows that they did not have in possession any school money. Under the law they could not have such possession. On the contrary, it shows they did not, and articles 2767 and 2777 expressly provide that school money shall be placed in the hands of the depository, and the facts show that the Newton county bank was the depository, conforming to the law in becoming such, and that all money belonging to the schools of that county was kept in that depository. As school trustees are not charged with receiving money in their official capacity, they therefore could not be the owners of school money in any sense, general or special. In order to charge an officer with embezzling or misapplying public funds, he must be charged as such, and his duties as such officer must authorize or require him to receive money in his official capacity. Hartnett v. State, 56 Tex. Cr. R. 284, 119 S. W. 855, 23 L. R. A. (N. S.) 761, 133 Am. St. Rep. 971, Warswick v. State, 36 Tex. Cr. R. 63, 35 S. W. 386, and Dickey v. State, 144 S. W. 271. School money is deposited in the county depository, to be paid out only as the law authorizes. In that way the depository may be said to be the special owner of funds of this character, because the law requires it to be so kept. If school trustees cannot receive the money or be charged with and prosecuted as embezzlers, it would be difficult to conceive how they could create an agency in any way with reference to receiving such money. The question of ownership in embezzlement is the same as in theft, for embezzlement is but a fraudulent conversion of money or property by the agent from the principal. See Leach v. State, 46 Tex. Cr. R. 509, 81 S. W. 733. Appellant was one of the trustees of the school district mentioned in the indictment; Cole and Robinson being tbe other two. These trustees all occupied the same relation to the law in all matters of duty or obligation. If one was a principal, they were all principals. If one was agent, they are all agents. They are authorized to approve accounts or vouchers to be subsequently approved by the county superintendent of the county schools. This, and this only, authorizes the depository to pay such voucher. This is the full extent of their connection with school money. Therefore neither nor all of them could be owners, special or general, of the funds. They were not "only not in control of the funds or had the funds in possession, as demonstrated by the facts, but, under the law, they could not be, nor have control of such money. If this matter is viewed from the standpoint of partnership, appellant could not embezzle from the partners nor be charged with embezzlement of partnership funds. This matter has been settled by quite a number of cases in Texas. See Dancy v. State, 41 Tex. Cr. R. 293, 53 S. W. 635, 886, and Manual v. State, 44 Tex. Cr. R. 433, 71 S. W. 973. But the general question is not debatable under our authorities. To constitute the relation of principal and agent, there must be authority or capacity to create such relation. The agent must be in the employment of the principal in some fiduciary relation. Unless the law specially authorizes an officer to receive money, he cannot do so, and, of course, he would not be authorized to appoint a deputy or agent to receive money. The statute in this instance does not authorize the appointment of agents or deputies. All three of the trustees stand in exactly the same relation to their duties as each so stands. A principal cannot constitute himself an agent. All three cannot create legal relations not authorized by law.

Again, the evidence shows beyond controversy, and from the state’s witnesses exclusively, that a schoolhouse under control of Cole, Robinson, and appellant needed repairs. It seems that appellant in a general way looked after and cared for the school property to be repaired. It was agreed that appellant should see that such repairs were made, make out a voucher for incurred expenses, and sign the names of Cole and Robinson thereto approving same. This was done, and the names of Oole and Robinson were signed to the voucher, or what they termed a voucher, which was nothing but a cheek drawn on the depository in favor of appellant, signed by Oole and Robinson. This, with the approval of Oole and Robinson, was carried to the county superintendent, Stewart, who approved it. These steps were requisite under the statute. Appellant, upon securing the indorsement of the county superintendent, carried the document to the depository, and was informed that there were no funds to pay it. This was in October. The bank, through its proper officer, bought the warrant or check for the bank, discounting it 5 per cent. The following February sufficient school money had come into the hands of the depository to pay the voucher. The voucher was cashed; that is, the depository paid the .bank. The bank discounted the warrant between $18 and $19. It is also shown by Robinson that he hauled some of the lumber to the schoolhouse for the repairs for which he received pay. The son or some member of Mr. Cole’s family, the other trustee, also received pay for hauling lumber to the schoolhouse to be used for repairs. Both Cole and Robinson testified that they authorized appellant to sign their names to the voucher approving it. So this testimony makes it clear and beyond controversy that Cole and Robinson, neither or both, ever let appellant have a dollar of any sort of money, school money or private money. Applying the law to the facts, the conclusion is irresistible that they could not have turned over to appellant any money legally, and did not, in fact, turn over to him any money. The only thing they did, or could possibly do, was to approve the voucher. Therefore the allegations in the indictment could not be supported from that viewpoint. Under no aspect of the law, as I understand it, could the relation of principal and agent have existed, and facts stated by the witnesses as shown by this récord.

The indictment presented no case, the facts disproved embezzlement, and this by the state’s evidence. As I understand the law and the facts, this conviction is not sustained by the law and is disproved by the facts.

I therefore respectfully enter this my dissent.


author: HARPER, J.

text:
    VASQUEZ v. STATE.
    (No. 3359.)
    (Court of Criminal Appeals of Texas.
    Dec. 23, 1914.)
    1. Indictment and Ineobmation (§ 137)— Quashing — Ikregulakities in Pbooedube of Gband Juey.
    Where, after the grand jury had been discharged for the term, the offense with which defendant was charged was committed, and the court reconvened the grand jury, as authorized by Code Cr. Proc. 1911, art. 423, a grand juror, who had witnessed the. offense with which appellant was charged, was not incompetent as a grand juror, though the state wanted him as»a witness, and it was not error to refuse to quash the indictment on that ground.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 480-487; Dec. Dig. § 137.]
    2. Indictment and Infobmation (§ 139)— Motion to Quash — Time.
    Under Code Cr. Proc. 1911, art. 630, requiring motions to set aside indictments and all special pleas and exceptions to be disposed of prior to the time the change of venue is ordered, a motion to quash an indictment for an irreg-nlarity in the grand jury came too late after change of venue.
    [Ed. Note.—For other cases, see Indictment and information, Cent. Dig. § 473; Dec. Dig. § 139.]
    3. Courts (§ 64) — Special Teems — Party Convened.
    Under. Code Cr. Proc. 1911, art. 94, Rev. St. 1911, art. 1720, a judge had authority to call a special term for the trial of cases.
    [Ed. Note.—For other cases, see Courts, Cent Dig. §§ 218-229; Dec. Dig. § 64.]
    4. Jury (§ 65)—Selection—Jury Wheel-Names Included—Qualified Jueoes.
    Under Rev. St. 1911, arts. 5151-5158, providing that in certain counties the officers shall write the names of all men “who are to be qualified jurors,” and place the names in the jury wheel, it was not a fatal objection to the venire that in the county where it was drawn, there were many qualified jurors whose names were, not in the wheel, where it was not shown that they were known to the officers, or contended that the omission of their names was intentional or hurtful to the defendant.
    [Ed. Note.—For other cases, see Jury, Cent. Dig. §§ 278-280; Dec. Dig. § 65.]
    5. Criminal Daw (§ 1208)—Punishment-Indeterminate Sentence.
    The jury having adjudged 25 years’ imprisonment to the defendant, the court should have given an indeterminate sentence of from 5 to 25 years instead of a fixed term.
    [Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §§ 3281-3287, 3289-3295; Dec. Dig. § 1208.]
    6. Criminal Daw (§ 1184)—Appeal—Refor-mation oe Judgment.
    A judgment for a fixed term, where it should have been for an indeterminate one, may be reformed by the Court of Appeals.
    [Ed. Note.—For other cases, see Criminal Daw, Cent. Dig. §§ 3199, 3200; Dec. Dig. § 1184.]
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    Deonardo D. Vasquez was convicted of murder, and appeals.
    Reformed and affirmed.
    C. E. Dane, Asst. Atty. Gen., for the State.

       For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   HARPER, J.

This is the second appeal in this case, on the former appeal the case having been reversed and remanded. 171 S. W. 1160. On this trial appellant was convicted of murder, and his punishment assessed at 25 years’ confinement in the state penitentiary. It is a companion case to that of Serrato (171 S. W. 1133), Gonzalez (171 S. W. 1146, 1149), and other cases, in which the appellants were charged with the murder of Deputy Sheriff Ortiz of Dimmit county.

No statement of facts accompanies the record; consequently many grounds assigned in the motion for a new trial cannot be reviewed by us. The only questions presented in a way we can review the action'of the trial court are presented in the three bills of exception copied in the transcript. In the first bill of exception it is complained .that the court erred in refusing to quash the indictment on the ground that Eugene Buck, a witness for the state, was a member of the grand jury which returned the Ijill of indictment against appellant. The record discloses that the grand jury had been impaneled prior to the time the alleged offense had been committed, and the grand jury had been discharged for the term; that when the offense with which appellant is charged was committed, the court reconvened the grand jury. He was authorized to do this by article 423 of the Code of Criminal Procedure. Mr. Buck, having been regularly impaneled as a member of the grand jury for that term, did the fact that he witnessed the offense .with which appellant is charged render him incompetent as a grand juror? The oath required to be administered to the grand jury provides that they must present all things which come to their knowledge. We think it incumbent upon all members of the grand jury to report to their fellow members all violations of the law of which they are cognizant, and the fact that the state might use them as a witness in the prosecution of the ease does not render them incompetent as grand jurors.

But, aside from this view of the law, the grand jury of Dimmit county indicted appellant ; the venue of his case was changed to another county,' and the law provides (article 630, Code of Criminal Procedure) that all motions to set aside the indictment, and all special pleas and exceptions, shall be disposed of prior to the time that the change of venue is ordered. This record discloses that all such pleas as appellant desired to enter were presented and overruled before the venue was changed, and this motion to quash the indictment, on the grounds named, would come too late. „ Vance v. State, 34 Tex. Cr. R. 395, 30 S. W. 792, and cases cited; Goode v. State, 57 Tex. Cr. R. 220, 123 S. W. 597; Serrato v. State, 171 S. W. 1133, decided at the last term of this court and not yet reported.

In the second bill is presented the question that the judge had no authority to call a special term of his court to try this and other cases. This has been decided so often adversely to appellant’s contention we do not deem it necessary to discuss it. Article 94 of the Code of Criminal Procedure; article 1720 of the Revised Civil Statute,

In the third and last bill is presented the question that the names of all qualified jurors in the county were not placed in the wheel from which the venire in this case was drawn. By Acts 30th Deg. (chapter 139, p. 269, Sess. Acts, now chapter 5, tit. 75, Rev. St. 1911) it was provided that in counties containing cities of more than 20,000 population the tax collector, the tax assessor, the county clerk, and the district clerk, or their deputies, should select the jurors in the manner and form therein provided. By section 2 of the act it is provided: The aforesaid of-fleers “shall write the names of all men who are Imown to he qualified jurors under the law,” and place such names in the jury wheel provided for in such counties. In the bill it is asserted that these officers did place in the wheel the names of all qualified jurors appearing on the tax assessor’s and collect- or’s rolls, but that it could be proven by the tax collector and tax assessor that the names of some 4,000 persons in Bexar county, who ■ were qualified jurors, did not appear on said rolls, and their names were not placed in the wheel. This is the first time, so far as we have been able to ascertain, that a construction of this provision of the jury wheel law has been called in question. It is contended by appellant that the leaving of the names of these jurors out of the jury wheel, whether intentional or unintentional, and whether or not hurtful or harmful to appellant, renders the special venire drawn in this case illegal, and this motion'to quash the venire should have been sustained. As it is a question of first impression, we have given it careful and thoughtful consideration. There is no doubt that it was the intention of the Legislature to require of the officers named that they place in the jury wheel the names of all persons in the county known to them to be qualified jurors, and if it appeared from the record that they had intentionally omitted to place in the wheel the name of any person known by them' to be a qualified juror, it would be ground to quash the venire, even though the record did not go so far as to show injury to appellant. The officers named would have no authority or right to refuse to place in the wheel the name of any person known by them to be a qualified juror. But in this case, in the bill, it is not claimed that the name of any person Icnoion at that time to he a qualified juror was intentionally left off the list of those placed in the jury wheel. The information as to other qualified jurors may have been received by the officers after the jury list was drawn.

All the law requires is that the officers named shall place in the jury wheel the names of all persons known to them at that time to be qualified jurors in the county. If they, through inadvertence or oversight, or through lack of knowledge, should fail to place in the wheel the names of persons who are qualified jurors, in the absence of injury shown to appellant, this would not present ground to quash the venire drawn. In this case it is not alleged that the names of any person was intentionally omitted; it is not alleged that appellant was injured by the omission to place such name or names in the jury wheel; it is not alleged that at the time the names were placed in the jury wheel, the officers knew that such other persons were qualified jurors, and knew their names, but it appears by the bill that the officers did place in the wheel the names of all persons appearing on the tax collector’s and tax assessor’s rolls who were qualified jurors, and under such circumstances we are of the opinion the bill presents no error.

Appellant, by the verdict of the jury, was adjudged to undergo 25 years’ imprisonment in the penitentiary. The court, in passing sentence on appellant, sentenced him to a fixed and determinate term of imprisonment. Under the indeterminate sentence act, passed by the Legislature, the judgment of the court should have been that appellant be confined in the penitentiary for a term not less than 5 years nor more than 25 years. In this respect the judgment is reformed, and the clerk of this court will so enter the order.

Reformed and affirmed.