text:
    POWELL v. STATE.
    (No. 4565.)
    (Court of Criminal Appeals of Texas.
    June 27, 1917.
    On Motion for Rehearing, Nov. 14, 1917.)
    1. Principal and Agent <§=>54 — Authority to Employ Subagent.
    Generally, in the absence of express or implied authority, an agent has no authority to employ a subagent, but when the employment of subagents is essential and necessary to execute the agency, the authority of the agent will be construed to include the necessary and usual means properly to execute it.
    2. Principal and Agent <§=>54 — Right to Employ Subagency — Collection of Note.
    Where a woman and her general agent managing her estate contemplated and intended the general agent should get some subagent, where the debtor resided, to collect a note' and interest, the general agent had the right to employ a subagent to make the collection.
    3. Embezzlement <⅜=44(1) — Agency of Defendant — Sufficiency of Evidence.
    In prosecution of an agent for embezzling his principal’s funds, evidence held sufficient to justify finding that defendant was the agent or employé of the alleged principal in collecting and receiving money on a note.
    4. Embezzlement ©=35 — Indictment—'Variance.
    Proof that defendant received a check from the maker, which he deposited in bank to his own account and cheeked out for his own purposes, without handling any money, was not a fatal variance from the allegation of indictment that he embezzled lawful money of, the United States.
    On Motion for Rehearing.
    5. Embezzlement <§=44(1) — Withdrawal ob Money from Bank — Sufficiency of Evidence.
    In a prosecution for embezzlement of agent to collect note, evidence held to justify the conclusion that between certain dates defendant drew out of his bank on various small checks all of the money received by him from the maker of the note.
    6. Embezzlement <§=>11(1) — Failure to Account to Principal.
    Where an agent to collect a note, after doing so, receiving from the maker a check, deposited it in bank to his own account, and failed to account therefor to his principal, he was guilty of embezzlement, whether or not he checked out more than $50 of the money for his own purposes at any one time, since a conviction for embezzlement will be sustained where defendant was intrusted with money to be disposed of in a particular way, and he did not do so, and fails to show an honest disposition thereof.
    Appeal from District Court, Clay County; Wm. N. Bonner, Judge.
    J. D. Powell was convicted of embezzlement, and hie appeals.
    Affirmed.
    Kay & Akin, of Wichita Palls, and Taylor, Allen & Taylor, of Henrietta, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   PRENDERGAST, J.

Appellant was convicted of embezzlement, and assessed the lowest punishment.' He was indicted by. the grand jury of Archer county.- By agreement the venue was changed to Clay county, where the trial occurred. The indictment averred that appellant, ini Archer county, Tex., on or about January 27, 1915, was then and there the agent and employé of, Florence C. Field, a private person, and that he did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of Mrs. Field certain money, to wit, $373.75, the same being lawful money of the United States of America of the said value of $373.75, and which was the corporeal personal property of and belonging to Mrs. Field, and which said money had theretofore come into the possession of and was then and ■ there under the care of the said Powell by virtue of his said agency and employment.!

There are but two questions to be decided. One is whether appellant was Mrs. Field’s agent or employé when he received the embezzled money, and the other is whether he received money, lawful money of the United States.

The facts shown were that in February, 1914, and prior thereto, J. D. Powell and one W. C. .Young were partners in the real estate business, and lived and did business in Archer City, in Archer county; and then conducted their business under the name of W. O. Young Land Company. While they were partners Powell was the manager. It seems they dissolved before January, 1915.

Said Mrs. Field lived in Dallas. So did her general agent Mr. C. B. Gillespie. Since 1912 Mr. Gillespie had entire charge, as her general agent, of all of her business, and he had authority to employ Mr. Powell, or any one else, to collect Mrs. Field’s notes, and everything he did in the matter was done with her sanction and approval. In 1914 Mrs. Field owned some land in Archer county. In the early part of that year Mr. Gillespie, her general agent, employed said firm of W. G. Young Land Company to sell that land for Mrs. Field, which they did, selling it to Helm & Rayborn. At the time of the sale and as a part of the purchase money thereof, Helm & Rayborn executed to Mrs. Field seven notes for $373.75 each; one each due annually until all matured. They were each dated February 21, 1914, signed by said Helm & Rayborn, each payable to the order of Mrs. Field; the first one due on or before February 1, 1915, payable at Archer Oity, they each retaining a lien on said land and had the usual maturing and securing and attorney’s fee clauses. Shortly before the first note became due Mr. Gillespie, for Mrs. Field, sent it in a letter addressed to said land company at Archer City for collection. At the time Mr. Gillespie knew that Mr. Powell, appellant, was or had been manager of said land company and all of his previous transactions with that firm had been with Mr. Powell himself. At the time he sent this note in said letter he also inclosed therewith a receipt for the interest for one year' on all the other of said- notes. • At the time he sent this note and receipt he did not know that said land company had dissolved, but he knew tha*t said Powell had charge of the -concern, and he was 'the only man that he knew in it. In this letter transmitting the note and receipt, Mr. Gillespie stated that he was sending it for collection for Mrs. Field. All the correspondence thereafter, carried on between Mr. Gillespie as Mrs. Field’s agent and said Powell was carried on in the name of Mr. Powell individually.

As soon as Mr. Powell received said note and receipt for collection he promptly notified Mr. Helm that he had the said note “in favor of Mrs. Field,” and asked him if it would be satisfactory to pay it through him as it would be to pay it direct to Mrs. Field, as he would get a commission out of it if paid through him. At the time he inclosed Mr. Helm a statement, showing that the year’s interest, $197.10, and the principal of -the note, $373.75, would make $570.-85. Thereupon, on January 27, 1915, Mr. Helm sent Mr. Powell his check on a Wichita Falls bank for the $570.85, payable to Powell, dated said date. Powell thereupon sent the note and receipt for the interest to Mr. Helm. On January 30th Powell indorsed his name on the back of that check and deposited it in the bank at Archer City, to his own credit, and that bank at that time gave him credit therefor. The bank at Archer City sent the check through its bank correspondent, and in the usual course of business the check was paid and returned to Mr. Helm and produced and introduced on this trial. Between the dates of January 30th and February 27th, appellant drew out of the Archer City bank all of said money on various small checks — some of them were perhaps later than February 27th.

Although Powell collected said note and interest on January 30th and placed it all to his credit in the Archer City, bank he did not remit a cent of it to Mrs. Field or to Mr. Gillespie, her general agent, until February 17th following. On February 15th, Mr. Gillespie wrote to Powell evidently inquiring whether he had collected the note and interest. On February 17th, Powell answered that letter and sent Mr. Gillespie a check for $197.10, saying, “Covering interest on the Field notes, and beg to say that the principal will be met in a short while.” The principal of the note, $373.75, or no part of it, has ever been remitted by Powell; instead he appropriated and embezzled the whole of it. himself.

Appellant did not testify. He contends that the evidence showed that in the collection and receipt of said money he was not the agent- or employs of Mrs. Field. Mr. Gillespie swore: ; ■

“I had general authority from Mrs. Field to handle her business. I was collecting this money for Mrs. Field; my whole connection with the matter from start to finish was for her, as her agent, acting under a power of attorney, at Dallas. Mrs. Field is a widow, and I handle and have handled all of her business since 1912.”

He further swore that when he sent this note and receipt in his letter to said land company or J. D. Powell:

“I stated that I was sending it for her, Mrs. Field, and all of my correspondence states that. * ' • I assumed the authority because Mrs. Field did not know Mr. Helm or Mi-. Powell, or anybody else, and the land -had been sold by them through me, * * * and I acted in the same way that I sent the collection there to them. I think that I could have employed anybody else; that I had the authority to employ Mr. Powell or anybody else to do the collecting of this note. I think that would have been permissible under Mirs. Field’s authority to me to collect her paper. * * * As to whether the selection of the W. O. Young Land Company or J. D. Powell was wholly a selection of mine to represent me in the collection of this paper (or) for my principal, Mrs. Field, will say that everything that I did in the matter was done with her sanction and approval.”

He further swore that in sending the no-te and receipt for collection, as stated:

“I represented Mrs. Field in the matter, and, of course, the note was not mine.”

In testifying about the sale of her land in Archer county to -Helm & Rayborn, Mrs. Field swore:

“I had nothing whatever to do with that transaction myself; Mr. C. B. Gillespie acted as my agent, had entire charge of it, and handled the matter for me.”

On cross-examination, when asked if Mr. Powell collected the money for her or was her agent, she swo-re:

“No one ever attended to anything of that kind for me but Mr. C. B. Gillespie — he has entire charge of everything. * * * Mr. Gillespie attends to everything of that kind.”

On redirect, examination she swore:

“Yes, sir; I did leave the matter of selecting who should collect or the collection of this note to Mr. Gillespie, and- whoever he got in Archer county to collect the note was all right with me; it was all right for Mr. Gillespie to select whom he chose, for he has entire charge of my entire estate.”

Mr. Helm swore that, just before this first note was due:

“Mr. J. D. Powell notified me that he had one of these notes of mine that was due, in favor of Mrs. Field, and asked me if it would be satisfactory to me to pay it through him as to pay it direct to Mrs. Field; that he would then get a commission out of it, and of course I told him that it would be satisfactory to me. I paid the note through Powell, and got my note. * * * At that time in addition to paying that note to Mr. Powell, which was $373.75, I also paid to him the interest on the series of notes which amounted to $197.10, making $570.85, principal and interest that Í paid him — to J. D. Powell.”

As stated, Mrs. Field and Mr. Gillespie lived in Dallas, Mr. Helm and appellant lived in Archer county. The note was payable to the order of Mrs. Field. She did not indorse it. It was -payable in Archer Gity. Mrs. Field did testify she did not- employ Powell, and he- was not her agent or employs, but her testimony shows' she meant she did not. personally employ him, and therefore, because she did- not personally employ him, she said he was not her agent or employe.

In Eastland v. Maney, 36 Tex. Civ. App. 147, 81 S. W. 574, Maney sued East-land and others for his commissions which he claimed, were due him for selling their land in Frio county, as their subagent. The court correctly held:

“It is a general rule of the law that in the absence of any authority, express or implied, an agent has no authority to employ a subagent, the trust committed to him being personal, and he cannot delegate it to another so as to affect the rights of the principal. There are, however, exceptions and modifications of the rule growing out of the necessities and exigencies of a case, or based upon the custom or usage of trade in like cases. There are instances when the employment of subagents is essentially necessary in order to execute the agency, and the authority of the agent will be construed to include the necessary and usual means to properly execute it. Bodine v. Insurance Co., 51 N. Y. 123 [10 Am. Rep. 566]; Dorchester Bank v. New England Bank, 1 Cush. (55 Mass.) 177; Bank v. McGilvray. 4 Gray (70 Mass.) 518 [64 Am. Dec. 92], At the time of the employment of appel-lee it was alleged that Hihn and Alfred T. East-land were empowered as agents to sell the land. They were residents of California, and the land -was situated in Texas, and it is a fair presumption growing out of the exigencies of the transaction that it was contemplated that a purchaser should be obtained, through a subagent. Smith v. Sublett, 28 Tex. 163; Tynan v. Dullnig [Civ. App.] 25 S. W. 465. It follows as a corollary to the above proposition that if the circumstances of the case justified the appointment of a subagent the principal would be liable for his compensation.”

In Wright v. Isaacks, 43 Tex. Civ. App. 226, 95 S. W. 55, it was shown that Mrs. Jemison, who lived in Alabama, appointed Mr. Mel-drum, who lived in Houston, her agent to sell lots for her situated in the town of Cleveland. Mr. Meldrum employed one Peebles, who lived in Cleveland, as a subagent to consummate sales of these lots. The court in that ease correctly held:

“It may be conceded that Peebles had not full authority as an agent of Mrs. Jemison to sell lots, and that Meldrum, being an agent of Mrs. Jemison himself for that purpose, could not delegate such authority to Peebles. Meldrum, however, in Ms capacity of agent could authorize Peebles to perform such merely ministerial acts with regard to the subject-matter of his agency as did not involve the exercise of judgment and discretion, such as pointing out the lots to be sold upon the ground, receiving offers to purchase and transmitting the same to Meldrum, and also advising .and informing purchasers as to the proper description of lots by numbers on the map of the town when the same were .pointed out by him. The power of Meldrum to delegate to Peebles the performance of such acts may be implied from his own agency, and the acts of Peebles under such delegated authority would be binding upon the principal, Mrs. Jemi-son (Meehem on Agency, § 193; 1 Am. & Eng. Ency. of Law, 978-980: Williams v. Moore, 24 Tex. Civ. App. 404 [58 S. W. 953]; McKinnon v. Vollmar [75 Wis. 82, 43 N. W. 800, 6 L. R. A. 121], 17 Am. St. Rep. 178; Renwick v. Bancroft, 56 Iowa, 527 [9 N. W. 367]).”

It was expressly held in the case of Smith v. Sublett, 28 Tex. 170, that the general rule is that in the appointment of an agent by a principal to do a given thing for him, the authority is personal and cannot be delegated to a subagent, “unless from the express language used, or from their presumption growing out of the particular transactions, or of the usage of trade, a broader power was to be conferred upon the agent. Story on Agency, § 14.”

In Wilson v. Smith, 3 How. (44 U. S.) 763, 11 L. Ed. 820, it was shown that Hol-combe, of Augusta, Ga., drew a draft in favor of Wilson & Co. on Mills of Savannah in said state, which was accepted by him.. When it became due Wilson & Co. placed it in St. John’s hands at Augusta for collection; St. John forwarded it to the defendant Smith for collection at Savannah. Smith collected it and credited it to the account of St. John, to-whom he was indebted. St. John became insolvent, failed in business, and later died. Thereupon Wilson & Co. sued Smith for the money. Smith defended on the ground, among others, that there was m> privity of contract between him and Wilson & Co. because he was the subagent of their agent to collect the money, • and as such subagent only he had collected the money. The United States Supreme Court through Chief Justice Taney held:

“According to the usual course of dealing among merchants, the transmission of the paper to St. John gave him an implied authority to send it for collection to a subagent at Savannah, for it could not have been expected by the plaintiff that St. John was to go there in person, either to procure the acceptance of the bill or to receive the money, nor could St. John have so understood it. So far, therefore, as the question of privity is concerned, the ease before us is precisely the same with that of the Bank of the Metropolis v. New England Bank, 1 How. 234 [11 L. Ed. 115]. In that case, the bills upon which the money had been received by the plaintiff in error were the property of the New England Bank,.and had been placed by it in the hands of the Commonwealth Bank for collection, and were transmitted by the last-mentioned bank to the Bank of the Metropolis, in Washington, where the bills were payable. And upon referring to the case, it will be seen that the court entertained no doubt of the right of the New England Bank to maintain the action for money had and received, against the Bank of the Metropolis. * * * We think the rule very clearly established that whenever, by express agreement between the parties, a subagent is to be employed by the agent to receive money for the principal, or where an authority to do so may fairly be implied from the usual course of trade, or the nature of the transaction, the principal may treat the subagent as his agent, and, when he has received the money, may i-ecover it in action for money had and received.”

The same doctrine is well established by the decisions of many courts and of the textbook writers. 2 C. J. p. 688. Meehem on Agency (2d Ed. 1914) in section 316, says:

“It is obvious, too, that notwithstanding the general rule, there are many cases wherein from the very nature of the duty, or the circumstances under which it is to be performed, the employment of subagents is imperatively necessary, and the principal’s interests will suffer if they are not so employed. In such cases, although the general rule might otherwise apply, an exception is suggested, based upon the presumed assent of the principal, and therefore if he has: not manifested a contrary intent, the power to employ the necessary subagents will be implied. The authority of the agent is always construed to include the necessary and usual means to execute it properly. Thus if a note be sent to a bank for coUection, and for the protection.of the principal it becomes necessary to have the note protested, the authority of the bank to employ the proper officer will be implied; and so if a note or draft be sent to a bank or other agent, to be collected at a distant point, the authority of the bank or other agent to employ a sub-agent at the place of collection, and to forward the note or draft to him there, would be presumed.”

Again in section 319 he says:

“And so, if the employment of a subagent was contemplated by the parties at the time of the creation of the agent’s authority, or if it was then' expected that subagents might or would be employed, this would be treated as at least implied authority for such employment. The fact that the employment of subagents was contemplated by the parties need not be shown by express proof. The nature of the service, the place at which it is to be performed, the distance between the place of appointment and the place of performance and similar circumstances may be taken into account.”

Undoubtedly both Mrs. Field and Mr. Gillespie contemplated and intended Mr. Gillespie for her should get some subagent at Archer City to there collect the note and interest for her. The distance and the very collection itself would exclude the idea that Mr. Gillespie was to go there in person to make the collection, and it would clearly show he had the right to employ appellant as her agent to make the collection.

There can be no doubt of the correctness of the propositions of law above, nor of the application of them in this case.

The court specifically, in his charge, told the jury, among other instructions, that one of the essential requisites to constitute the offense of embezzlement was the defendant’s agency, whereby he was charged with the duty of receiving the property and the receipt of it by virtue of his agency, and required the jury to believe this beyond a reasonable doubt with the other requisites before they could find him guilty. Appellant made no objections to the court’s charge, but in addition to the court’s charge he gave several special charges, requested by appellant, among them these:

“That unless you find from the evidence beyond a reasonable doubt that the defendant, J. I>. Powell, was the agent or employé of Mrs. Florence O. Field at the time he received the check from S. G. Helm, then you are instructed that you cannot convict the defendant, and your verdict will be, not guilty.” “Requisite No. 2 in the court’s main charge, is as follows: ‘The receipt of the property.’ By that is meant that the defendant must receive the identical property charged in the indictment, which is lawful money of the United States of America; and you are instructed that the term ‘money’ as defined by article 1419 of the Penal Code is as follows: ‘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 unless you find from the evidence beyond a reasonable doubt that the defendant by virtue of his agency or employment of Mrs. Florence O. Field did receive lawful money of the United States of America as hereinbefore defined, and did fraudulently embezzle, misapply; or convert said money as hereinbefore defined, then you will acquit the defendant and so say by your verdict.”

Others of his special charges are quoted below.

Undoubtedly the evidence was sufficient for the jury to believe therefrom that appellant was the agent or employs of Mrs. Field in collecting and receiving the money on said note. The evidence was sufficient to show that Mr. Gillespie had the express power and authority from Mrs. Field to employ appellant to collect and receive said money for her. But if not the express, then unquestionably, the implied, power and authority to so appoint and employ him, and that he was the employs and agent of Mrs. Field in the matter, notwithstanding she herself personally did not make the appointment and may not have known at the time that Mr. Gillespie had done so.

The other contention of appellant — that, as the indictment alleged that the $373.75 in money collected and received by appellant on said note, and which he embezzled, was “lawful money of the United States of America,” the state had to prove literally that he received the money, and that it was lawful money of the United States, and that as appellant was not shown to have received physically the money, but a check therefor, there was a fatal variance between the allegation and the proof. This identical question has been expressly and correctly held against appellant. In Medders v. State, 54 Tex. Cr. R. 494, 113 S. W. 270, it was shown Medders and Baxter were indicted for swindling a bank out of a' little less' than $1,000 under certain false representations to ■the bank. The testimony in that case showed that under certain false representations they borrowed $1,000 from a bank, but that the actual money was not paid to them or either of them. Instead, when the note was executed the bank under their agreement merely passed that amount to the credit of Baxter on its books, and that he afterwards checked out the money by checks to various persons. The indictment therein. alleged that the money so obtained was current money of the United States of America, just as alleged in this case. Therein this court, through Presiding Judge Davidson, held:

“Appellant contends that neither he nor Baxter received any money of any sort, and that while the money was placed to the credit of Baxter, it created only the relation of creditor and debtor as between Baxter and the bank, and therefore no money was in fact obtained. We have held in prior eases this proposition is not sound; therefore we deem it unnecessary to review that (question. * * * Appellant depended largely upon the theory that, as the indictment charged him with obtaining current money of the United States, the case was not made out; in fact, that there was a variance between the allegation in the indictment and the evidence introduced because of the fact that no money really passed between the parties, and the passing to Baxter’s credit the $1,000, less the one month’s interest, was not sufficient to show a reception of money. _ As stated, we do not think there is any merit in this contention. It was as much a money transaction by passing the money to the credit of Baxter as if he in fact had received the money and placed it back in the bank, or had received the money and carried it away. It changed the possession and title to the money from the bank to Baxter. The court, therefore, did not - err in refusing, appellant’s requested instruction covering this contention.”

The Medders Case was a companion case to Baxter v. State, 51 Tex. Cr. R. 576, 105 S. W. 195. Substantially the same point was made in the Baxter Case and expressly held against him.

In Pope v. State, 75 Tex. Cr. R. 54, 170 S. W. 152, it was shown that Pope was bookkeeper and cashier of the Nobles Grocery Company, with authority to draw checks and sign said company’s name thereto in payment of debts due by the company; that he drew a cheek on one bank in Amarillo for $312.60, signing said company’s name by him. He took this check to the First State Bank, where there was a draft due by said company for $107.42, which he paid not in money, hut by the cheek for $312.60. Then he had St. Louis exchange issued for the remainder $205.18, payable to his brother-in-law. He then indorsed his brother-in-law’s name on the back of that exchange and his own name, and therewith paid a debt due by him to Crossett. Pope therein contended that the evidence was insufficient to show that he embezzled the money, $205.18, but that, if it showed anything, it showed that he embezzled the St. Louis exchange for that amount. As a matter of fact in that case not a dollar of actual money was handled in any way by appellant or anybody in connection with the transaction. This court held that “the court [below] correctly held that it was the money he embezzled and not the draft or exchangethat various steps taken by him were but steps in the one scheme to appropriate his employer’s money, which he, by the confidence placed in him, had under his control to the extent he used the money in the bank in the purchase of' the exchange payable to his brother-in-law.

In Nesbitt v. State, 65 Tex. Cr. R. 349, 144 S. W. 944, it was shown that Smith had money on deposit in the Gatesville National Bank. Nesbitt was a stockholder in the Banners’ National Bank at Gatesville, and he induced Smith to change banks and to give him (Nesbitt) a check on the Gatesville National Bank which he would take the next day and deposit in Smith’s name to his (Smith’s) credit in the Farmers’ National Bank. Smith gave the check to Nesbitt for that purpose. Instead of Nesbitt depositing the check to the credit of Smith, he deposited it in the Farmers’ National Bank to his own credit, and then gave a cheek therefor in payment pro tanto of his own note. The indictment therein had two counts; one charging embezzlement of said check and the other of the money represented thereby. The testimony showed that not a dollar of money was handled physically by appellant or ány one else. Appellant therein ’ eontehded that as the indictment alleged in fact that he embezzled $60 in current money of the United States, and that as' the testimony showed he received no money, he could not be convicted under the second count. This court held directly against Nesbitt’s contention to the effect that he could be convicted therein for the embezzlement of the $60 in money, although he and no other in connection therewith handled a dollar in actual money; in effect that the transaction, of depositing the check to his own credit and drawing his check in payment on his own note was an embezzlement of the money itself. See, also, Leach v. State, 46 Tex. Cr. R. 511, 81 S. W. 733; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302.

These authorities are in. point and directly hold against appellant’s contention. As stated, appellant made no objections to the court’s charge. Among the other requisites the court in his main charge told the jury that it was essential that the appellant received the property (money) before they could convic|t him. In addition he igave these two special charges at appellant’s request, to wit:

“Before you can convict the defendant in this case, you must find and believe from the evidence beyond a reasonable doubt that the state has proved the offense as charged in the indictment, to wit, that the defendant, J. D. Powell, was the agent and employs of Mrs. Florence O. Field at the time he collected the note in question, and at the time he checked money out of the bank, he so collected, if you find he did check said money out of the bank, and he did so at said time with the fraudulent intent to embezzle, misapply, or convert said money, and that said money had come into his possession by virtue of his employment or agency, and that said money was lawful money of the United States of America; and unless you so find, you will acquit the defendant.”
“And before you can convict the defendant, you must find from the evidence, beyond a reasonable doubt, that at the time the defendant cheeked out the money in question, if you find he did check out said money, that he had the fraudulent intent to then embezzle, misapply, or convert said money so checked out, if he checked- out said money, and unless you find such fraudulent intent at said time, you will acquit the defendant.”

What was said by Presiding Judge Davidson in the Medder Case, above quoted, is peculiarly, and especially applicable in this case. The evidence unquestionably shows' that under the authorities he embezzled $373.-75 of Mrs. Field in money — lawful money of the United States — and he was justly and legally convicted.

The judgment is affirmed.

On Motion for Rehearing.

The only two questions raised or urged by appellant when this cause was submitted are stated, discussed, and correctly decided against him in the original opinion. In that opinion the testimony of some of the witnesses on some points is quoted. Where this is done the quotations are from the record, and are correct in every particular. That opinion, also, in some instances, states what the evidence established without particularly quoting the testimony of various witnesses so establishing. Wherever this is done, the evidence was clearly sufficient to so establish. In his motion for rehearing, he, for the first time, contends that there is no testimony which shows that he ever drew out of the bank in small checks all of the money of Mrs. Field which he had collected for her and deposited in his own name; and that there is no testimony which shows that he ever drew out any part of said money; and he contends that from this record the court cannot tell but what the entire amount is to-day in the bank where he originally deposited it; and that the state must show that he did check out at least more than $50 of that money at one given time in order to show that he is guilty of felony embezzlement. And he now especially complains of this sentence in said opinion:

“Between the dates of Jany. 30th and Eeb. 27th appellant drew out of the Archer City bank all of said money on various small checks —some of them were perhaps later than Eeby. 27th.”

This sentence was not stated as being specifically sworn to by any witness, nor can it be so construed. It is a conclusion deducted from the testimony, which was clearly sufficient to show it. But whether he drew out said money on small checks or not was immaterial, as will be herein shown.

Mr. Helm, one of the makers of said $373.-75 note, swore he paid that note and $197.10, the interest on all them due February 1st. to appellant by his check for $570.85 payable to appellant, dated January 27th. The banker, Mr. Power, swore appellant indorsed his name on that check. Appellant was particular to prove by him, that he, appellant, on January 30th deposited that check, and thereby the money called for by it, $570.85, in the bank at Archer City to his, appellant’s, credit. The check, with its indorsements, was identified and introduced in evidence. It is copied in the record. Appellant also had the banker identify the bank deposit slip to him for $612.85, showing it included said deposit of $570.85 to his credit on January 30th. There is no possible doubt, from the undisputed testimony, that appellant collected said $570.85 for Mrs. Field and placed it to his own credit in said bank on January 30th, and that he has never at any time or way remitted any of it to Mrs. Field or Mr. Gillespie for her. Mrs. Field swore:

“I have never received from J. D. Powell, or any other person, one cent of the principal of this note for $373.75. * * * J. I>. Powell, the defendant here, received and kept and embezzled that money without my consent or my knowledge.”

Mr. Gillespie, Mrs. Field’s general agent, swore he sent said note and a receipt for said interest to appellant for collection and remittance to him for Mrs. Field', just a short time before it became due. He swore:

“He [appellant] has never at any time remitted to me the principal sum on this note of $373.75.” That he received a letter from appellant dated February 17, 1915, in which he wrote: “Your favor of February 15th to hand and I beg to enclose you check for $197.10 covering interest on the Field notes and beg to say that the principal will be met in a short while. Everything in this part is looking a little bit more favorable, but it will take another year for our people to recover fully.”

This letter was proven up and introduced in evidence. It is copied in the record. Mr. Gillespie further swore: That, soon after he learned of the collection of said note and had received said letter; “I have made (in writing) quite a number of demands on J. D. Powell for remittance of this $373.75.” That he went to Archer Gity twice in October, 1916, to see him about the matter, but Powell was not there, and he did not then see him. Upon said repeated written demands by Gillespie, he swore, appellant wrote him letters. He produced and identified three, each addressed to Gillespie, signed by Powell and from Archer City — one dated March 9, 1915, another March 12th, and another March 27th. They were introduced in evidence and copied in the record. The one of the 9th was:

“Money that I was expecting to arrive by to-day’s mail did not, but as the trains have changed schedule, expect it in to-morrow. Hence will be a day or two late in reaching you.”

The one of the 12th was:

“Your favor to hand and I beg to say in reply that you know it is very humiliating not to be able to send this Field matter as you suggest, but I assure you that this was caused by no crookedness of mine, but was done by the bank taking up note that was due, from my deposits, when it was my intention to let it run for 30 days by renewal;- however, I will have this money in your hands in a few days and hope that you will just rest easy for a very short time, for I intended to have it by the 10th and when the papers came it was necessary to return them to Ky. for correction, but I will have it in a few days, so please for my sake, be easy on me.”

The one of the 27th was:

“You will confer a lasting favor on me and one that I will not only appreciate but that I will gladly reimburse you for, to wait a few days longer on me. I have deal closed by which I will get money but the delay has been for a correction called for in title. Please do this, will oblige, yours truly.”

Gillespie swore he went to Archer City again on April 3, 1917, saw and talked to appellant about the matter, and at the time, “he [appellant] practically in every sense of the word acknowledged to me that he had collected the principal of this $373.75 note, and he made an offer of adjustment.” Mr. Gillespie further swore that even up to the very time he was testifying in this case (on May 30, 1917) “he [appellant] has never reached me or sent me any money yet that he collected on this $373.75 note.”

Appellant’s statement in said letter of March 12th to the effect that the reason he had not remitted the $373.75 which he had collected and deposited in said bank to his own credit, “was done by the bank taking up note that was due from my deposits,” etc., was false, for said banker testified:

“Between January 30th, the date of this deposit, and March 12th, the date of this letter, I did not charge off any note of J. D. Powell’s that he owed us, out of the deposit that he had made of this Staff (S. G.) Helm’s check. * * *»

'And further, this banker testified:

“On that date (Jany. 30th) or within a few days subsequent thereto, I did not <&arge off any note, that I know of of J. D. Powell, as against this money that he had deposited with this (Helm) cheek, in question. His ledger account here does not show it; it shows that the charges against the account are small items down until the 27th of February, and subsequent to this date of January 30th. Yes; the account shows small checks given against the account.”

Again he swore:

“The record of the individual ledger that I have here shows that J. D. Powell gave checks against his account, charges of small amounts, on down to February 27th, and down further than that also.”

All this testimony, without any sort of doubt, justifies the conclusion and deduction stated and quoted above in the original opinion of which complaint is specially made. In fact, such conclusion is not only reasonable, but is the only reasonable conclusion or deduction that could be drawn therefrom and is undoubtedly true.

But whether he drew out said money at the time and in the manner stated or not would make no difference. Under the law and the unquestioned facts he was undoubtedly guilty of embezzling said $373.75 of Mrs. Field’s as will now be further shown.

This court, in many cases, has held the “correct legal principle” on this point as stated for the court by Judge Henderson in Evans v. State, 40 Tex. Cr. R. 58, 48 S. W. 194, as follows:

“We hold this to be a correct legal principle, applicable to this character of case: That when the state has shown by competent evidence the receipt of money or other property by the carrier, to be carried and disposed of in a particular way, and the state shows that it was not delivered and disposed of in the way and manner as agreed upon, and this is established beyond a reasonable doubt, if the party intrusted with the property has made some other disposition of the property, not criminal, to relieve himself of conversion he must introduce proof of such disposition. Penal Oode, art. 52; Bridgers v. State, 8 Tex. Cr. App. 145. We would further observe in this connection that if appellant made other disposition of the property, as sending the latter by mail, without registration, to the sendee, as suggested by counsel, this proof was peculiarly within his knowledge. Caldwell v. State, 5 Tex. 18; Ashcroft v. State, 32 Tex. 108; Leonard v. State, 7 Tex. Cr. App. 417. Indeed, under the facts of this case, if he sent the money to Mahoney, in Mississippi, it was not legally possible for the state to produce said witness at the trial, nor use his deposition. Appellant, however, was authorized to take the deposition of said witness, and prove the fact of the delivery of said letter and money. Appellant, however, appears, from his own statement made to Miss Stanley to have cut himself off from this defense, because, when confronted by her, he told her that he had the receipt for the registered letter, but did not have it with him. We are not here talking about a prima facie case, but we are discussing the question of defendant’s guilt as proved beyond a reasonable doubt, and we hold that the record authorized the jury to_ find_ that the state had made a plenary case in this regard.”

In that ease Miss Stanley delivered to Evans a letter containing $50 addressed to Mr. Mahoney in Mississippi, to whom she was indebted, which letter he agreed to register in the post office at Waco and take her the receipt therefor. She did not know whether Mahoney received the $50 or not. She did not know whether Evans sent the letter through the ordinary mail or by express. He did not register the letter. The state therein made no proof that he spent the money or made any other disposition thereof.

In Itiley v. State, 32 Tex. 767, the state proved that McKeever and Van Slyke, doing an express business, in the name of the Phoenix Express Company, delivered $10,000" in money to Riley, their agent or messenger, to be transported by him from Galveston to Bryan and to be there delivered by him to Adams & Hearn. But the state did not prove what he did with the money, except that he did not deliver it to Adams & Hearn. The court held:

“The reception of the money as agent or messenger of the Phcenix Express Company, or of the copartnership of McKeever & Van Slyke, and the failure to give even a feasible account of the money of bis employers which had been intrusted to his care, raise a presumption in law of its misapplication, or appropriation to his own use. And unless he could counteract this presumption by satisfactory explanations, or by facts and circumstances sufficient to create a reasonable doubt of his guilt, the jury would be warranted in finding a verdict against him upon a charge of embezzlement.”

The law is correctly laid down by Mr. Branch in his 2 Ann. P. C. p. 1415, as follows:

“A conviction for embezzlement will be sustained where defendant was intrusted with money or property to be disposed of in a particular way and the proof shows he did not do that, and defendant fails to show an honest disposition thereof. Riley v. State, 32 Tex. 764; Bridgers v. State, 8 Tex. App. 147; Evans v. State, 40 Tex. Cr. R. 58 [48 S. W. 194]; Hamer v. State, 60 Tex. Cr. R. 341 [131 S. W. 813].”

To the same effect see, Bridgers v. State, 8 Tex. App. 147; Jackson v. State, 44 Tex. Cr. R. 265, 70 S. W. 760; Stephens v. State, 49 Tex. Cr. R. 492, 93 S. W. 545; Schweir v. State, 50 Tex. Cr. R. 123, 94 S. W. 1049; Garner v. State, 51 Tex. Cr. R. 579, 105 S. W. 187.

Appellant’s contention that the state must prove he checked out of said deposit he made at least more than $50 at one time, in order to show he was guilty of felony embezzlement, has been expressly and repeatedly held against him by this court. See Hamer v. State, 60 Tex. Cr. R. 341, 131 S. W. 813, an opinion of this court by Judge McCord; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302, an opinion of the court by Judge Davidson ; Lawshe v. State, 57 Tex. Cr. R. 32, 121 S. W. 865, an opinion of the court by Judge Ramsey. In the Hamer Case Judge McCord, in the original opinion, stated Hamer’s contention as follows:

Appellant seeks a reversal “because the proof disclosed that on the date alleged in the bill of indictment, when the embezzlement occurred, the defendant embezzled less than $50 in value, and therefore the court should have directed the jury, if they found the property to be of a less value than $50, that defendant would only be guilty of a misdemeanor, or, to state it in another way, that if money is placed in the hands of an agent to be handled for his principal, and that he used that money at different times, each appropriation would constitute a separate offense, and for that reason, if at any time he appropriated an amount less than $50, that defendant could not be convicted of a felony.”

On this point, the court, speaking through Judge McCord, held:

“On the trial of the case appellant offered his account with the bank where he kept Miss Lewis’ money deposited. The account simply stated ‘J. P. Hamer, trustee.’ He offered this account in evidence, and it shows that on the 13th day of December, the date alleged in the bill of indictment as to when the appropriation occurred, he drew out of the bank $17.25 in one check, and $25 in the other. The contention is made that, the bill of indictment alleging the offense to have occurred on that date, and the account only showing that he drew out of the bank $42, this was a separate and distinct offense, and, being a misdemeanor, the court should have directed the jury that they would find defendant guilty of petit theft, and that the state was not permitted to show any other date than the 13th, because each withdrawal was a separate and distinct appropriation. We cannot give our sanction to this theory. The money having .been, deposited by defendant in the bank, he liad 'authority to withdraw the money, and the mere act of withdrawal could not, of itself, be construed into an appropriation. Suppose that defendant deposited $2,000 in the bank on the 15th of October. Suppose on the next day he declares an appropriation in his mind, then because he may have drawn it out by dribbles, could it be said that each withdrawal was a separate offense? Or suppose that he had the $2,000 in his pocket, and determined to appropriate it, and he walked out of his office and went upon the street, and spent $5 or $10 to-day, $15 to-morrow, and $25 the next day, would each be a single appropriation? We think the position is wholly untenable. The offense of embezzlement is constituted by tin fraudulent misapplication or conversion 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 his office, agency, or employment. See article 938, Penal Code. A question similar to this came before this court in the case of Taylor v. State, 29 Tex. App. 466, 16 S. W. 302, and the proposition contended for by appellant here was held adversely to his contention in that case. Judge Davidson, speaking for the court, says: ‘Appellant urges that the facts raised the issue upon which the court should have charged the misdemeanor phase of the law of embezzlement, and that if embezzlement was proved at all, it was not shown that as much as $20 was converted at any one time. To this we must withhold our assent. We do not think the evidence raises this issue. The facts show that the appellant obtained as agent large sums of money of his employer and converted same to his own use.’ So in this case the proof discloses that appellant received $2,050. This money came into his hands on the 15th of November, 1902. One month thereafter, or on the 17th day of December, 1902, he forged a note to cover $2,050, and attempted to make Miss Lewis believe that this note was genuine, aud that he had loaned her money on it. This itself may be evidence of the act of conversion, and this was the day that the offense was alleged to have been committed. But let us look at it differently. Defendant’s account at the bank shows that on October 15th, the very day that this money was placed in the bank, he drew out $540; on the 16th, $100; on 18th, $136; on 23d, $65; on 29th, $50; on November 6, $61; on 7th, $73. If it may be charged that each withdrawal of the money from the bank was a separate offense, still the fact that the defendant showed on the day alleged in the indictment he did not commit a felony, the state would be permitted to go behind that date and show that he had committed a felony at some time within the period of limitation, and the state was not limited to the day alleged in the indictment. But it is contended by appellant, if the offense committed on the day alleged in the bill of indictment was a separate and distinct offense, and the state, having so proved this matter, was precluded from inquiring into other offenses, and he gives as an illustration that if a party steals several horses from different persons at different times, you could not offer the proof of the theft of a horse from B. when you had alleged the theft of a horse from A. on the date fixed in the indictment. We do not think counsel is happy in his illustration. Each is a separate and distinct offense. Here it is not the withdrawal of the money in dribbles that makes the offense. It is the appropriation of the money, and whenever the defendant appropriated it his offense was complete, and the state’s case cannot be successfully met by proof that after he had appropriated the money he scattered it out in small amounts and then claim that -these small amounts would constitute separate offenses.”

On rehearing, appellant contended that the offense was barred by limitation. On this question, as well as applicable to appellant’s contention above stated, the court through Judge McCord further held:

“Appellant has filed a motion for rehearing, and asks that the affirmance be set aside and that the case be reversed and remanded because the facts in the case show that if there was any embezzlement in this case, the same was barred by the statute of limitation. The indictment in this case was returned against the appellant on the 28th day of October, A. D. 1905. It charges the offense to have oo eurred on the 13th day of December, 1902, and alleges the embezzlement of $2,050. The proof showed that Miss Emily Lewis had the defendant to act as her agent and attorney, and that on October 15, 1902, she turned oyer to the defendant $2,000 to handle and inyest for her as her agent. About a year after she let the defendant have this money the demand was made on him for the same, and he claimed that he had loaned this money on December 13, 1902, to a man by the name of John Ward and exhibited a note for that amount, covered by a mortgage on real property. It was discovered that this note was a forgery, and no such man existed, and no such property was in existence as was described in the mortgage. The state, after proving the delivery of the $2,000 and $60 to the defendant, proved the agency, the time of the delivery of the money, the demand that was made on the defendant, his representation that he had loaned the money, and the falsity of this loan. The defendant then offered testimony of the deposit of this money in the bank by him, and that on the same day that he had drawn out the sum of $540, and that at separate times from that day he had drawn out various sums, ranging from $15 up to $150. He makes the contention before this court that the act of embezzlement was complete when he drew out the $540 on the day the money was deposited m the bank and that this completed the offense on that date, and that the same was barred by limitation. We have not been cited to any authority, nor have we been able to find any authority that holds that where a lump sum of money is in the hands of an agent and he uses that money for his own purposes and draws it out, or appropriates it at different times and in different amounts, each withdrawal or appropriation of the sum will constitute a separate offense, or that the intent would be fixed by his use of the money. This would simply be evidence of the appropriation of the money, and the transactions would simply be continuous in their character. The statute makes it embezzlement to misapply, convert and appropriate money or property that may have come into the hands of a person as agent or attorney, or trustee, with a fraudulent intent to deprive the owner of the value of the same. This intent is gathered from the various and sundry acts that go to make up the complete conversions or misapplications, which may be continuous in their character, and to hold that each withdrawal from the bank would constitute a separate offense would be splitting up the transaction and making various and sundry offenses out of one criminal intent. Intent is incapable of direct proof. Therefore great latitude is necessarily allowed in proving this element of the offense. Broadly speaking, any evidence is admissible ■ which has a tendency, even the slightest, to establish fraudulent intent on the one hand, or on the other hand to show the bona fides of the accused. See Cyc. vol. 15,529. As said by Judge Clark in the case of Leonard v. State, 7 Tex. App. 417: ‘What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted. There is' no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading.’ The charge in this case is the embezzlement of $2,050, belonging to Miss Emily Lewis, which had been intrusted to the defendant’s hands. He had authority to draw this money out of the bank — all at once, or at different times. This act of withdrawal would not be a crime within itself, nor would the several withdrawals constitute different offenses. The first evidence that the state produced in this case of any act of fraudulent appropriation on the part of defendant was on the 17th day of December, 1902, when, for the first time, he makes a note purporting to be the act of one Ward for this money, and in order to deceive Miss Lewis he paid interest on that note for a year. We are constrained to hold that the act of embezzlement in this case took place on the day when he attempted to manufacture testimony to cover up the money that had been intrusted to him by Miss Lewis, and that the different acts of withdrawal of the money from the bank were but continuous acts of his that might be circumstances to develop the criminal intent. When was the criminal intent formed in this case, according to the testimony? Was it when this money was withdrawn from the bank? We do not know. But the state has fixed it as on the 17th day of December, 1902, when he attempted to conceal from Miss Lewis the whereabouts of this money which she had intrusted to him. In the Lawshe Case, reported in 57 Tex. Cr. R. 32, 121 S. W. 865, this court held that where the employment and all the transactions were continuous and the proof raised no issue of an embezzlement of less than $50, it was sufficient to charge the jury that the accused could be convicted of felony if the sum embezzled was in excess of $50 without also charging that before the jury could convict the proof must show an embezzlement at one time of a sum exceeding $50. In the Lawshe Case he was agent of the Missouri, Kansas & Texas Railway Company at Sealy, and was agent for the American Express Company, and his duties intrusted him with moneys belonging to these different companies, and he was charged with the embezzlement of moneys belonging to the companies. In that case it was shown that he appropriated moneys at different times, and the court gave them a general charge that if he was agent of the Missouri, Kansas & Texas Railway Company, and had in his possession as their agent moneys belonging to them, and that he embezzled and fraudulently misapplied the same of the value of $50 or over, they would convict. It was objected in that case that the court erred in not charging the jury that before they could- convict, the proof must show an embezzlement at one time of a sum exceeding $50. This court held that it was not necessary for the court to have so charged. This court says: ‘Under the evidence appellant was entitled to receive the money, and it is for its fraudulent appropriation when so received by virtue of his agency that he is amenable to law. The testimony shows that the receipts of the office ran from $1,200 to $1,800 per month. The aggregate shortage is shown to be a sum largely in excess of $500. * * * The employment and all the transactions were continuous, nor was the issue of an embezzlement of less than $50 raised.’ The right of the defendant in this case was continuous to draw the money out of the bank at any time and in any amounts he saw fit, and it cannot be said that each withdrawal constitutes an offense and that the fraudulent intent relates to the first withdrawal alone.”

The Taylor and Lawshe Cases and the holding of the court therein are so fully stated by Judge McCord it ds unnecessary to further state or discuss them.

The substance and effect of all the testi-fnony clearly established that shortly after appellant deposited said money in the bank he drew all of it out; and his contention that it cannot be told from the record “but that the entire amount is to-day in the bank, where he originally deposited it,” is certainly not true, but the reverse, is true. He collected the principal, $373.75, and the interest, $197.10, as one collection, and deposited the whole in the hank as one deposit, on January 30th. His instructions, contract, and duty was to remit both at once and at the same time. He then remitted nothing. Mr. Gillespie doubtless found out he had made the collection, and on February 15th wrote to him, doubtless demanding that he remit the money. On February 17th appellant answered Gillespie and sent him a check for the interest only, writing:

“I beg to inclose you check for $197.10 covering interest on Field notes, and beg to say that the principal will be met in a short while.”

This was in effect a denial that he had collected the principal, or an indirect admission that he had then appropriated it for some purpose of his own. In either contingency, or both, it was strong testimony that he had then spent or appropriated, and embezzled the principal. Gillespie again, in writing, demanded the money, and on March 9th appellant in answer wrote' to him:

“Money I was expecting to arrive by today’s mail did not. * * * Expect it tomorrow, hence will be a day or two late in reaching you.”

This was also to the same effect as his letter of February 17 that he had already appropriated and embezzled the principal. Doubtless right away Gillespie in writing again demanded he should send him the principal. Appellant answered that demand on March 12th, saying:

“Tour favor to hand. * * * You know it is very humiliating not to be able to send this Field matter, * * * ” but his not doing so was caused “by the bank taking up [my] note that was due, from my deposits,” and stating, “I will have it in a few days, so please for my sake, be easy on me.”

This statement by him that the bank had taken out of his said deposit a note he was due the bank was false, as so testified by the banker. This letter is the strongest kind of testimony by appellant himself to the effect that he then had no money of said deposit in the bank, but had then drawn it all out, and his said false statement was the strongest kind of evidence showing his appropriation and embezzlement of said $373.75. And again, his last letter of March 27th, begging for more time to remit said money, saying therein, “You will confer a lasting favor on me, and one that I will not only appreciate, but I will igladly reimburse you for, to wait a few days longer on me,” therein, as he had done in a previous letter, which must have also been false, that he had made another deal whereby he would get the money and then pay the $373.75. In the face of this testimony, and much other showing he ha,d drawn all that money out of the bank, it is perfectly preposterous to claim that that $373.75 which he had deposited in the bank on January 30, is still now in said bank to his credit. Under the law and the facts there can be no sort of doubt of appellant’s guilt, and the jury so found — could not legally have found otherwise.

Motion overruled.
      É=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PRENDERGAST, J.

license: Public Domain

text:
    COFFEY v. STATE.
    (No. 4655.)
    (Court of Criminal Appeals of Texas.
    Oct. 31, 1917.)
    1. Intoxicating Liquors <§=3236(11) — Unlawful Sale — Sufficiency of Evidence.
    Evidence held sufficient to support a finding that a transfer of whisky was a sale and not a gift.
    2. Indictment and Information <@=79 — Indistinct or Blurred Letters.
    Where the first letter of the word February was so indistinct or blurred as to appear to be “R,” instead of “F,” in the date in an indictment for the commission of a crime, the defendant was not misled thereby.
    3. Intoxicating Liquors <@=39 — Elections —Regularity—Necessity fob Contest.
    That nine days elapsed between an election and canvass, and there was error in the date in the certificate of publication of the result of a prohibition election, there was no error in allowing their admission in evidence, in a prosecution thereunder, where the election had not been contested in the time required by law.
    4. Criminal Law <@=1091(3) — Improper Questions — Bill of Exceptions.
    No error is shown where the bill of exceptions shows an improper question was asked, but does not show what the answer was.
    5. Criminal Law <@=614(3) — - Continuance-Sufficiency of Application — Diligence.
    An application for a continuance, stating that defendant had made diligent inquiry and exerted all means in his power to find the exact location of a witness, and had located him in D., and no process was issued after a prior application, where there was a return that witness was out of the county, did not show diligence.
    6. Criminal Law <@=603(S) — Continuance-Sufficiency of Application. •
    An application for continuance, which does not show that testimony of an absent witness cannot be procured from any other source known to applicant, is defective.
    7. Criminal Law <@=596(3) — Continuance for Absent Witness — Impeaching Testimony.
    A continuance to get impeaching testimony was properly refused, where other witnesses testified to the same matter.
    8. Criminal Law <@=614(1) — Supplemental Motion for Continuance.
    Where a continuance was refused, but the court allowed an adjournment, a supplemental motion for a continuance on the day adjourned to was a second application.
    9. Criminal Law <@=854(6) — Separation of Jurors — Statutes.
    It is not erroneous, in the absence of any other showing, to allow jurors chosen, but not sworn, to separate, or that such jurors separate of their own accord, or that the court does not instruct them; Code Cr. Proc. 1911, art. 745, relating only to “after the jury has been sworn and impaneled.”
    Appeal from District Court, Morris County; J. A. Ward, Judge.

      H. B. 'Coffey was convicted of an unlawful sale of intoxicating liquors, and lie appeals.
    Affirmed.
    E. B. Hendricks, Asst; Atty. Gen., for tlie State.
   PRENDERGAST, J.

Appellant was indicted April 18, 1917, for making an unlawful sale of intoxicating liquor (whisky)- on February 26, 1917 to M. E. Stegall, after an election had been held in June preceding, putting the prohibition law in effect in said county. He was convicted, and the lowest punishment assessed-against him. All the orders ordering said election, canvassing and declaring the result, and the order of the commissioners’ court duly entered and published prohibiting the sale as alleged in the indictment, were proven up and introduced in evidence. Stegall, the alleged purchaser, testified positively that:

About February 26, 1917, “I purchased some whisky from Mr. Coffey. I paid him $2 for two pints, $1 a pint. That was in Morris county, Texas. I drank it, and know it was whisky.”

He was put through a long and severe eross'-examination about various matters— where he had lived, what he had done, and other matters unnecessary to state. On his cross-examination, and by other evidence, too, it was clearly shown that on said occasion he and L. L. Ellis were arranging to go some eight or ten miles on a fishing trip, and that they did go; that they were in appellant’s store, and bought from him some provisions to take, and which they did take, with them; that they hired appellant to take them in his automobile, which he did. Among other things, on cross-examination, he swore:

“I bought two pints of whisky from Hugh Coffey [appellant], and gave him $2 for it. He did not hand me the whisky but put it in a box. We got ready to start, and he asked if we wanted the whisky, and we told him to put it in. I told him I wanted two pints. I did not pay him until we came back from the fishing trip. * * * I saw him put it in the box. I don’t recollect the name of the whisky, but it was red whisky. It was in pint bottles.”

He further swore: “I did not ask him the price of it.” He further swore, in substance, that Ellis at the same time also bought from appellant two pints of whisky under the same circumstances- that he had bought the two pints, and that appellant put them in the box with the groceries that they had bought from him. He further swore that he and Ellis hired appellant to take them and said whisky and groceries, in his automobile, to their fishing place, eight or ten miles off, and that he was to charge each of them $1 therefor. The groceries they bought aggregated $2.80; the whisky that the two men bought aggregated §4; and according to his testimony, $2 for taking them in the automobile would aggregate $8.80. Stegall swore that after they returned from the fishing trip he paid appellant $8.80, and that it included the - price of the whisky. Appellant said that they each were to pay him $3 apiece for his taking them to the fishing place, and he accounted for the $8.80 that way. He also swore that said parties at said time got four pints of whisky from him, the usual price of which was $1 a pint, and that he put that in the box with the groceries they bought from Mm, and he hauled the whole, with the two parties, out to the fishing place; that he returned at once, did not remain there, and did not drink any of the whisky. He claimed that he made a present of the whisky to these parties. They both denied that he had made them a present of it, but each, in substance, swore that they paid him $1 a pint for it.

Said Ellis testified that he and Stegall went fishing, and had appellant to take them, and that they got the provisions- and whisky from appellant at the time. He said:

“We got the whisky from Mr. Coffey. I' could not tell you what we paid for it. When I .went to pay my bill, I just asked for my part of the fishing bill. The understanding between me and Stegall was that I pay half the bill. I did not ask what the whisky was or anything.” That, when he asked what his bill was, Coffey told him $4.40, and that he paid to Coffey, some weeks after he returned from the fishing trip, that amount.

Appellant introduced Frank Wilkinson, who testified substantially that he was present in appellant’s store at the time Stegall and Ellis got the groceries and whisky from appellant. He swore that Rel Coleman and others were present in the store at the time, also; that on this occasion, and while they were buying, said groceries, he heard Ellis ask appellant:

“ ‘Hugh, have you got anything?* Hugh told him, ‘Yes; a little.’ Mr. Ellis said, ‘Put in some;’ and Hugh said he would. * * * I saw Mr. Coffey put something in the box.”

He further swore that this something which appellant put in the box was four pint bottles of whisky; that he got the bottles of whisky out of a box under his counter.

Appellant also introduced Luther Coffey, who testified that he was present on said occasion, when Stegall and Ellis purchased the groceries and had appellant put in the whis-ky for them. His testimony was substantially like Wilkinson’s.

Appellant himself testified, and his testimony was to the same effect as Ellis’ and Stegall’s — that they bought from him on that occasion some groceries, and that he took them and their groceries and the whisky with them to the fishing point, eight or ten miles distant; that he did not stay there at all, but returned, and drank none of the whisky himself. The substance of his testimony was that these parties, or Ellis, procured this whisky from him at the time, as- all the other witnesses testified; but he testified that he did not sell it to them at any price, but that he made them a present of it. He also swore that each, Ellis and Stegall, later paid him one-half for the groceries and one-half of his charge for hauling them out, but that they did not pay him for the whisky.

Undoubtedly the testimony was clearly sufficient to show that appellant made the sale of two pints of whisky to Stegall and that Stegall paid him therefor. His claim that he did not sell the whisky to these parties, but that he gave it, which was worth $4, to them, is unreasonable; and the jury was clearly authorized, if not required, under the testimony, to belive that he sold them the whisky, and that they paid him for it, and that he did not give it to them.

There is in the record what must be the original, not a copy, of what is termed a bill of exceptions. At the head of it is the style of the cause, the number, the court, and the term thereof. It is subdivided into eight separate and distinct heads. Bach starts with, “Be it remembered that upon the trial of the above entitled and numbered cause,” and then very meagerly and very briefly sets out the different things of which he complains of the action of the court. The first is that the court overruled his motion to quash the indictment, on the ground that it charged the offense was committed on the 26th day of “Reburary,” 1917, to which he excepted. At the end of this omnibus bill of exceptions the court made an explanation and qualification. Of this item he stated:

“The indictment was written on a typewriter, and a carbon copy was made to be served on the defendant, and the carbon paper became folded, and did not make the letter ‘F’ in ‘February’ plain. I examined the carbon copy, and it appeared more plainly to be ‘February-’ ”

We have examined the copy of the indictment in the record, and it is there spelled plainly “Eeburary,” and not “Reburary.” Even if we are authorized to consider said paper as a bill of exceptions, on this point the ruling of the court was clearly correct. Even if the first letter of the word “February” was so indistinct or blurred as to appear to be “R,” instead of “F,” there can be no particle of doubt but that appellant was in no way misled, and could not have been, by this letter. See the authorities collated in 2 Vernon’s Orim. Statutes, p. 231, and 1 Branch’s An. P. O. §§ 489 and 499.

His subdivision 2 of said purported bill complains that the court erred in admitting in evidence the order of the commissioners’ court declaring the result of said prohibition election, because the election was held on June 3, 1916, and_ the returns canvassed and the result declared on June 12, 1916, which shows that only nine days elapsed from the holding of the election until this action of the commissioners’ court; and he objected to the introduction of the order declaring the result, which the court overruled. In liis third subdivision he complained of the court’s permitting the certificate of publication by the county judge of the order declaring the result of the election, which record, he alleges, was certified by the clerk to have been done on June 12th, because it was an erroneous declaration and in conflict with that already introduced declaring the result of the election; and he claims such certificate was void, that the court overruled his objection, and admitted said testimony, to which he excepted.

Not in either of these subdivisions is the document, which he complains was introduced in evidence, copied or otherwise stated than as substantially stated above. The court at the end of said purported bill as to this matter, said:

“I admitted all the orders of the commissioners’ _ court, because no contest of the election was filed within 30 days after the declaration of the result of the election, and the entry of the certificate of the county judge that he had caused the order of the commissioners’ court to be published for 30 days as required by law was conclusive that all the orders were regular, in the absence of a contest of the election.”

There can be no question but that the ruling of the court was correct under the express provisions of the statute and the many decisions of this court on the point. Revised Civil Statutes, arts. 5721 and 5728: Doyle v. State, 59 Tex. Cr. R. 61, 127 S. W. 815; Wesley v. State, 57 Tex. Cr. R. 277, 122 S. W. 550; Gipson v. State, 58 Tex. Cr. R. 405, 126 S. W. 267; Hardy v. State, 52 Tex. Cr. R. 421, 107 S. W. 547; Wilson v. State, 107 S. W. 818; Alexander v. State, 53 Tex. Cr. R. 505, 111 S. W. 145; Romero v. State, 56 Tex. Cr. R. 436, 120 S. W. 859, and many other decisions.

Another of said subdivisions complains that the witness Stegall was asked the question:

“State whether or'not, about the 26th day of February, you purchased any whisky from Mr. Coffey?”

This subdivision does not show that he answered said question, or, if so, what his answer was. His sole objection to the question was because he claimed the indictment misspelled the word “February,” and spelled it “Reburary.” There is no error shown in this matter.

His next subdivision complains that the district attorney, upon redirect examination of said Ellis, asked him twice in the affirmative and once in the negative if Hugh Coffey (defendant) “did not run a saloon up there,” which manner of questioning, hei claimed, was prejudicial to him. What the witness answered, if he did, is not disclosed. This shows no error.

The next subdivision shows that on April 23, 1917, when the case was called for trial, he applied for a continuance on account of the absence of said Rel Coleman, who resided in said county. He alleged that he had used due diligence to procure his attendance. The only diligence alleged was that on April 20th a subpoena for him was.returned that the witness was out of the county. He alleged that he expected to prove hy said witness that said Stegall did not have any conversation with the defendant at the time of the alleged sale of said liquor, and that he would further testify that said Ellis told him that he and Stegall were going fishing and wanted defendant to carry them in his car, and what occurred between them about his taking them in his car to the fishing place; that he did not want to take them, but that he would do so for $6; and that Ellis further stated to said Coleman that he (Ellis) ha'd been on a drunk the night before and needed some whisky, and wanted some to take along to sober up on; and that the defendant placed some whisky in the box of groceries which said Ellis had purchased for the fishing trip. Upon hearing said motion, while the court would not continue the ease on said application, he postponed the trial of the case until April 27th.

When the case was again called for trial on April 27th, defendant made what he called a supplemental application for a continuance, in which he alleged that he had made diligent inquiry and exerted all means in his power to find the exact location of said witness, and that he had located him in Dallas. No other process was ever issued for said witness to any place after the return on April 20th tiiat he was out of the county. Appellant does not, by his second application, show what diligence he had used to find the witness. Neither does he allege, in his second application, that the testimony by said witness cannot be procured from any other source known to him,-as the statute requires. As a matter of fact, he did introduce two other witnesses, Wilkinson and Luther Coffey, who testified substantially that they, together with said witness, were present on the occasion of said alleged sale, and they did not hear Stegall have any conversation with defendant. The claimed evidence of the absent witness of what Ellis said to him, if admissible at all, would only have been for the purpose of impeaching Stegall. A continuance to get such impeaching testimony is not authorized. The said supplemental motion for a continuance was, and has many times been, held to be a second application. Griffith v. State, 62 Tex. Cr. R. 642, 138 S. W. 1016; Bowen v. State, 65 Tex. Cr. R. 46, 143 S. W. 187; and other decisions.

The next (the seventh) subdivision is:

“Be it remembered that on the 27th day of April, A. _ D. 1917, and on the trial of the above entitled and numbered cause, the defendant filed the following exception to the action of the court: ‘State of Texas v. H. B. Coffey, No. 2044. The defendant excepts to the acts of the court in permitting eight of the jurors, after the list had been struck by both the state and the defendant’s counsel, and had taken their seats in the jury box, and before they had been sworn, to separate and leave the courtroom without instructions from the court, while the sheriff was out selecting talesmen to complete the jury of eight men already selected, and drawn by the clerk of the court. [Signed] J. H. French, Jr., Attorney for Defendant. Filed April 27, 1917. A. W. Sweeney, Clerk.’ The court permitted the filing of _ the above written exception at the trial of this cause as a part of the record in this cause, and the defendant asks that this bill of exceptions be signed and filed as a part of the record in the case.”

This is, in full, said subdivision. No such motion appears anywhere else in the record. This subdivision does not show, and nothing else in the record shows, when such a motion was called to the attention of the court. The only other way in which this matter is shown is a statement by the judge at the end of this omnibus bill, if it can be called a bill of exceptions, to wit:

“A list of the jury was given out to the attorneys, and after they exercised their challenges the clerk made out a list of those not challenged by either party, and it was found only eight jurors were chosen. I then swore the sheriff and sent him out to summon other jurors to complete the jury. The eight jurors chosen were called to the jury box, but not sworn. While the sheriff was out after the other jurors to complete the jury, some of the eight jurors, who had been selected and called to the jury box, but not sworn to try the case, were permitted to retire from the courtroom. I permitted the eight jurors selected to separate before the jury was completed and before the jury had been sworn.”

It will be noted that in said . motion the complaint is not that these eight jurors were permitted to separate and leave the courtroom, but the only complaint was that they were permitted to do this “without instructions from the court.” What such claimed instructions should' have been is in no way disclosed. There is no statute in this state requiring that jurors who have preliminarily-been selected, as these eight jurors were in this case, shall be kept together and not permitted to separate, nor that the court shall 'give them'any instructions whatever. While, of course,' it might be proper for the court" to prevent their separation and also give them some instructions, the only statutory provision on this subject is article 745; O. C. P., as follows:

“After the jury has been sworn and impaneled to try any case of felony, they shall not be permitted to separate until they have returned a verdict, unless by permission of the court, with the. consent of the attorney renresenting the state and the defendant, and in charge of an officer.”

There is not an intimation in said motion that any or either of said jurors had in anyway whatsoever, or by any person whomsoever, been approached, or said anything, or that anything was said to any of them. The said purported motion does not claim that he challenged any or all said eight jurors on any ground. It does not in any way claim that they were incompetent, or they were not fair and impartial jurors. The sole ground, as stated in the motion, is that he excepted to the court permitting these jurors to separate and, leave the courtroom “without instructions from the court.” Simply that, and nothing more. Under the circumstances, the action of the court in this matter does' not present reversible error.

The judgment is affirmed.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


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

text:
    MESSENGER v. STATE.
    (No. 4529.)
    (Court of Criminal Appeals of Texas.
    June 13, 1917.
    Dissenting Opinion July 18, 1917.)
    1. Criminal Law <S==>633 (2) — 'Trial—Order— Reading Information.
    In prosecution for adultery, it is error to admit evidence without having the information read, the defendant being required to plead to the information only, and not the complaint, under Code Cr. Proc. 1911, art. 717, stating the order of procedure.
    2. Witnesses <©=>303 — Accomplices — Immunity.
    In prosecution for adultery, the paramour is an accomplice, and a promise of immunity, to secure her testimony, to be binding-, must he sanctioned by the court.
    3. Criminal Law <©=342 — Accomplices—Immunity.
    A promise of immunity to the paramour in prosecution for adultery amounts to nothing unless she testifies to the truth.
    4. Witnesses <©=3306 — Privilege — Accomplices.
    The paramour in adultery, being an accomplice, cannot be forced to testify or used against her consent.,
    5. Witnesses <S=>380(5i) —- Capacity — Code-EENDANTS.
    In prosecution for adultery, where the paramour testified that she had had no sexual intercourse with defendant, it was improper to admit evidence that she bad been promised immunity if she would testify, and that she had Signed a- written statement admitting the intercourse.
    Prendergast, J., dissenting.
    Appeal from Lampasas County Court; J. Tom Higgins, Judge.
    John Messenger was convicted of adultery, and he appeals.
    Reversed and remanded.
    T. S. Alexander and Roy L. Walter, both of Lampasas, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of adultery, his punishment being assessed at a fine of $300.

This is a case of circumstantial evidence. Appellant was charged with having had habitual carnal intercourse with Ada Goodman, the said Ada Goodman being a married woman, without living together. Bill of exceptions No. 1 shows that after the jury had been impaneled the county attorney read to the jury the complaint and called Standridge to testify, and after being questioned as to his name and residence, and if he knew appellant, he was asked the question whether or not he had ever seen defendant and Ada Goodman together. Appellant objected to the testimony of this witness for the reason the information had not been read to the jury, and the reading of the complaint to the jury not being in accord with the statute. This was all overruled, and the witness testified. This is generally stated here because this matter runs throughout the case. The judge states that the state offered to read the information, and the defense objected, whereupon the court ordered the trial to proceed without reading the information. The reason given by the judge in his qualification is a strong reason why his ruling was error. When the defense objected he was entitled to have that objection sustained, and the county attorney required to read the information. Appellant was only called upon to plead to the information, not a complaint. The complaint is the basis of the information, but the prosecution cannot be had without the information and its being read to the jury. It is to this that the accused is required to plead. Appellant’s objection was well taken to the evidence, and the court should have sustained it and permitted the county attorney to then read the information and a plea should then have been entered, and the case then tried. See article 717 C. C. P. Among the late and one of the best-considered cases among the decisions of Texas is Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927, written by Judge Ramsey when he was a member of tips court. He reviews the authorities and the whole matter. Appellant’s objection either should have been sustained or the county attorney required to read the information, and then try the case.

Another bill recites that the county attorney asked the witness Ada Goodman if she and defendant had not had intercourse, in Lampasas county on numerous occasions. She replied in the negative. Thereupon the county attorney asked her if she had not stated to the justice of the peace and county attorney that she had had carnal intercourse in Lampasas county on numerous occasions, and if she did not sign a written statement to that effect; the county attorney reading from a purported statement made by said witness. To all this appellant objected for divers reasons. The county attorney stated it was< offered for the purpose of impeachment, which statement was then”read. To all this exception was reserved. The court signs this with the statement that the state through its attorney had promised the witness Ada Goodman immunity from prosecution for her part in the adultery charge provided she would testify to this matter “as per her knowledge of all the matter,” and when she was placed on the stand by the state she denied the whole of her former statement, and the county attorney pleaded surprise and offered the statement for the purpose of impeachment of Ada Goodman, and the court admitted the testimony or former declaration on that point. It will be: noticed that the promise of immunity, as stated by the judge, and this is the only j place where it occurs so far as this record ■ is concerned, was made on the condition that the accomplice would testify to this matter as it was within her knowledge. She was an accomplice, and a promise of immunity by state’s counsel in order to be binding would have to be sanctioned by the court. There is nothing in the record and nothing in the bill of exceptions to show that the court agreed to any dismissal of the prosecution against her unless it be the mere fact that he required her to testify upon the statement of the county attorney that he had promised the witness immunity on the stated conditions. This promise, as stated, was not an exemption from prosecution if the county attorney and the court are correct. Immunity from punishment or from prosecution under such circumstances is not binding and amounts to nothing unless the immuned accomplice testifies to the truth. This has been settled by an unbroken line of decisions in Texas. She was an accomplice, and if the state’s contention is night, she was guilty, and she had made a statement to that effect, and the state expected to prove those facts. There was no immunity; there was no dismissal of the prosecution; and, so far as the record is concerned, this prosecution was held over h§r without dismissal so that she might testify against defendant to incriminating facts. She has not been rendered by the very statement of the county judge immune from punishment if she did not tell the truth, even had the county judge sanctioned the immunity promise. This matter has been the subject of a great deal of discussion in the decisions as to when the state may impeach its own witness under the theory that the state has been surprised and injured. This qualification of the judge does not show that the woman agreed to turn state’s evidence. The county attorney proposed immunity if she would testify to the matter as she understood it. Otherwise than by an indirect conclusion suggested by the fact the state swore her as a witness, there is nothing to indicate that she ever agreed to such thing, and when placed upon the stand she emphatically denied the whole matter. She was an accomplice, and could not be forced to testify, and could not be used against her consent. See Garland v. State, 51 Tex. Cr. R. 643, 104 S. W. 898. The rule also is in matters directly upon this question that declarations of a co-defendant cannot be used against the other codefendant. Quinn v. State, 51 Tex. Cr. R. 156, 101 S. W. 248. While for the state a codefendant may be a competent witness, yet the state is bound by such circumstances as each case may develop. The witness may testify freely for the state if he or she so desires, and may thus turn state’s evidence with or without any contract, but where the party turns state’s evidence on a contract, that con- | ■ tract must be sufficient to be binding in the courts. It is not thought necessary to cite | authorities on that proposition. Had she testified as the state anticipated, she would have been an accomplice, and the trade was made with her upon the theory that she was an accomplice; otherwise the promise of immunity would have been worthless. From any view we think this impeachment was not admissible. She had testified to no fact against the state except she declined to state that appellant was guilty of having carnal intercourse with her; in fact, she stated he had not had. This was not injurious to the state. She had not testified to anything against the state. She had just refused or failed to make out a case for the state. Had she testified to some material fact against the state that would be damaging to its case, we would have had a different proposition, but she had not testified anything against the state in stating that she had not had intercourse with appellant. The state was trying to make out a ease through her testimony, but she declined to assist the state. It was just a failure on her part or a refusal to assist the state in proving the guilt on the part of the defendant. We are of opinion this testimony was not admissible from any viewpoint.

The signed statement of Ada Goodman was offered in evidence and admitted over appellant’s objection. It is unnecessary to discuss that because it is a part of the same proposition. The state should not have been permitted under the circumstances to put the witness on the stand, and, failing to prove a fact, then impeach her by proving that she had made statements otherwise that would implicate or incriminate the defendant. The court did not charge with reference to the use of the impeaching testimony or that the woman was an accomplice and could not corroborate herself. Certainly she could not be corroborated by such character of impeachment. She was made not only an unworthy witness by impeachment but this emphasized the fact that her testimony was used to get before the jury evidence she refused to give and fully denied.

For the reasons indicated, the judgment is reversed, and the cause remanded.

PRENDERGAST, J.

(dissenting).

This case should be affirmed, not reversed. The record distinctly and positively shows that the case was called for trial on March 1, 1917, that the state was represented by the county attorney and the defendant in person and by an attorney, and that both parties announced ready for trial, and the defendant in open court entered his plea of “not guilty.” A jury trial was had, and he was found guilty. This is nowhere disputed in the record.

One bill shows that after the jury had been impaneled the county attorney read the complaint and introduced the witness Stand-ridge, and that after he had been questioned as to his name and residence, and asked if he knew appellant, he was then asked “whether or not he had ever seen the defendant and Ada Goodman together.” Whereupon the defendant objected to said testimony or any testimony by said witness for the reason that the information had not been read in compliance with the statute. The court in qualifying the bill states, “It was offered by state to read information and defense objected, whereupon court ordered trial to proceed without reading of information,” and the trial did then proceed.

This, under the express decision of this court in Barbee v. State, 32 Tex. Cr. R. 171, 22 S. W. 402, in an opinion by Judge Davidson, was a waiver of the reading of the information. In the Barbee Case, which was a felony, the indictment through inadvertence had not been read, and this was not discovered until after all of the evidence had been introduced. Thereupon Barbee objected to the district attorney then reading the indictment. The district attorney also offered to reintroduce the evidence, to which defendant objected, upon the ground that it had already been placed before the court and jury. The court, through Judge Davidson, held:

“The court held this to be a waiver of the reintroduction of the testimony, and sustained the objection. We are of opinion the ruling was correct. * * * Under the circumstances its reintroduction would have been more of a formality than otherwise, and was, we think, waived by defendant. * * ⅜ While, under the terms of the Code of Criminal Procedure (article 660), it is mandatory that the indictment be read to the jury before the evidence is offered, and while it may be true the conviction would be illegal should this not be done, it would nevertheless be proper, upon discovery of this omission, to read such indictment to the jury, and reintroduce the testimony; and it is an equally correct proposition that the accused could waive both the reading of the indictment and the jein-troduction of the evidence. We are of opinion that the ruling of the court in the matter complained of was not erroneous.”

And the judgment in that case was affirmed.

The case of Essary v. State, 53 Tex. Cr. R. 596, 111 S. W. 927, cited as sustaining the majority opinion in this case, does not do so, and is wholly inapplicable to the question. The syllabus on the point in that case clearly expresses what was decided therein. It is:

“Where upon trial for murder it appeared that all the testimony of the state was offered before the indictment was read, or before any plea on the part of the defendant had been entered, and there was no offer made by the state to reintroduce the testimony, the same was reversible error under article 697, Code Criminal Procedure.”

In that case the Barbee Case, above referred to, is expressly cited, quoted from, and approved. Besides, the bill in no way discloses what testimony, if any, the state’s witness Standridge gave; hence in no event did that bill present any error.

The other point decided by the majority opinion is in direct conflict with the statute and all the decisions thereunder. The bill on this point shows that the woman had made a written statement before the officers wherein she expressly swore that appellant had had sexual intercourse with her repeatedly, frequently, and many times. The state relied upon her as its witness, and introduced her as such with the idea that she would testify as she had already sworn. But, instead of doing so, she testified to the reverse, that appellant had never had sexual intercourse with her at any time. A statement is made in the opinion herein to the effect that this testimony by her “was not injurious to the state.” A strange statement. I do not know how anything could have been more injurious to the state. She had stated before to the officers in a sworn statement that he had had intercourse with her as stated above, and now when the state relied upon her and introduced her to prove the same thing by her she positively swore he had never had intercourse with her at any time. The statute expressly states (article 815, C. C. P.):

“The rule that a party, introducing a witness, shall not attack his testimony is so far modified as that any party, when facts stated by the witness are injurious to. his cause, may attack his testimony in other manner, except by proving the bad character of the witness.”

It had always heretofore been held in compliance with the statute, that when either party, in reliance upon what a witness said he would swear, introduces such witness, and he swears the reverse of it, whichever side introduced him can impeach him by showing that he before made a reverse statement, and, by showing surprise, which was done in this case, can impeach the witness by showing the previous statement. Por a collation of some of the authorities, see the note under said article in 2 Yernon’s Criminal .Statutes, p. 763.

The immunity of the witness has no application in this case. She did not fail to testify, but she did testify, and testified the reverse of what she had previously sworn and stated to the officers she would swear.

The evidence is amply sufficient to sustain the conviction, and the judgment should have been affirmed, and not reversed. I dissent.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes