Allen v. State

204 S.W. 764, 83 Tex. Crim. 613, 1918 Tex. Crim. App. LEXIS 278

Opinions

MORROW, Judge.

Appellant was indicted in four counts. Only two of them were submitted. Hence it is unnecessary to state those not submitted. In one submitted appellant was charged with theft as bailee of an automobile. In the other for the embezzlement of $150. He was convicted under the latter and assessed the lowest punishment. Most of the testimony as to the material facts were sharply contradicted, but the jury and the judge of the lower court believed the incriminating facts proven by the State and disbelieved the exculpatory evidence which might have been sufficient to authorize an acquittal, or a misdemeanor conviction.

Mrs. Annie Richardson, a married woman, whose husband was away, tried to buy from Mr. Taylor an automobile at the price of $350. She had only $150 in cash, and wanted to pay that and give a mortgage on the machine to secure the $200 in monthly payments of $25. She and Taylor consulted a lawyer, who advised against such a trade because Mrs. Richardson was a married woman and could not give a valid mortgage. Thereupon this proposed trade fell through. Mrs. Richardson then got in communication with appellant and she says he thereupon agreed to buy the car for her, she to furnish him $150 to make the cash payment and he to use that to pay the cash payment and give his notes and mortgage for the $200, payable $25 monthly payments. She swore,' in substance, that as her agent and employe for that purpose she on that date drew out of the bank and handed to him $150 in cash and he agreed to buy the car for her and pay her $150 as a cash payment thereon. He denied this. He said that she did not turn him over $150 for that purpose, but that she handed him $90 only and that it was in substance then agreed between them that $65 of that money was in payment to him by her of that amount which, he claimed, she then owed him, and that he then so appropriated $65 of it himself. She swore that she did not owe him one cent and handed him the $150 for the purpose stated by her and for no other, and that he did buy the car for her and in substance delivered it to her and that it was her car. He swore that he did not buy the car for her, but bought it for himself and that it was his car and not hers at any time; that he never paid her money for it, nor delivered the car to her as hers. It was established as a fact that about ten days after appellant bought the car he sold it hack to Mr. Taylor for $140 cash, and the surrender of his notes without Mrs. Richardson’s knowledge or consent, kept the $140 and refused to pay her back her $150, or any part thereof. Each side introduced more or less testimony tending to support their respective contentions.

The jury evidently believed his contention to the extent that he did not pay her $150 on the car nor buy the car for her but bought it for himself, and it was his and not hers for the jury acquitted him of the theft as bailee of the car. The jury as evidently believed her testimony and that supporting her that she turned over to him $150 as her agent and .employe to buy said car for her and pay that much of her cash therefor for they convicted him of the embezzlement of said $150 or at least more than $50 of it. Among other things, she swore that he told her he lost the $150 she.handed him in a crap game at Fort Worth. He denied this. Which was true was a question for the jury. From the State’s testimony, which it seems somewhat preponderated, the evidence was sufficient to sustain the verdict. It being» peculiarly a question to be solved by the jury, we can not disturb the verdict. The court gave a full and apt charge, submitting every issue raised by appellant in his favor, which was in no way objected to.

Under the circumstances we can not do otherwise than affirm the judgment, which is ordered.

Affirmed.