This prosecution arose under Art. 1540, P. C., which makes an officer of court guilty as for theft who fraudulently converts to his own use funds coming into his possession by reason of his office. The punishment assessed is five years in the State penitentiary.
The indictment charged, in effect, that appellant was an officer of court in that he was a receiver in a certain suit pending in the 108th Judicial District Court of Potter County, and that there came into his possession, by virtue of such office, the sum of ten thousand dollars, which he fraudulently converted to his own use.
The facts show that there was pending, in the above named court, a suit to foreclose certain liens upon the Melrose Apartments in the City of Amarillo. Appellant was duly appointed receiver of said property, pending final determination of the suit; and, on the 18th day of August, 1933, he qualified as such receiver by taking the oath and by giving the required bond for the faithful performance of his duties.
The order of the court appointing the receiver authorized among other things: (a) to demand, collect and receive all rents for the property; (b) to rent any part of the premises; (c) to keep the building in repair and insured; (d) to pay all expenses necessary or incident to the management of the property; (e) to secure a resident manager for the premises; and (f) to retain possession of the revenues derived pending final determination of the suit.
The receivership continued for a period of approximately five years, or until the 5th day of July, 1938, when it was terminated by a sale of the property under the judgment of the court.
Thereafter, one of the attorneys called upon appellant for a final report as receiver; in consequence of which appellant delivered to the attorney, what he termed and represented to be, his final report. It consisted of a statement showing the monthly receipts and disbursements throughout the entire period of the receivership. The names of the parties from whom receipts were received, as well as those to whom payments were made, were set forth. This account or report was not signed by the appellant nor was it in any manner attested by him. The appellant did, however, represent and state to the attorney to whom it was delivered that it was true and that it correctly reflected the receipts and disbursements. The account showed that appellant had received $17,782.20 more than he paid out. In other words, he was short that amount. Appellant freely admitted such fact, both orally and in writing. His only explanation was that he had spent the money and could not make payment thereof into court.
The attorney to whom the account was delivered filed same in the court and denominated it the receiver's final report.
On the 2nd day of September, 1938, an order was entered approving the receiver's final report, in which order it was found that the appellant had the sum above mentioned, which he was directed to apply to the payment, first, of the court costs, then to a fee of $4,700.00, allowed the receiver for his services, and the balance to the payment of other items of indebtedness, including taxes, as set forth in the order.
The judge of the court in which the proceedings were instituted and finally determined testified, upon the trial of this case particularly with reference to the approval of the final report. The effect of his testimony was that the order of approval was entered, alone, upon the unsigned and unattested account or report, as filed and presented by the attorney to whom it was delivered by the appellant. No evidence appears to have been introduced establishing the correctness of the report. The appellant did not testify at the hearing, nor did he appear in court, or before the judge, in connection therewith. In fact, the judge testified that he had never talked with appellant relative the report.
There was proof that appellant did not pay any of the items listed for payment in the order approving the final report. There was proof also that, during the period of the receivership, the apartment was at all times reasonably well filled with
tenants. The witness attesting this fact was unable to say that any tenant had ever paid the appellant any rental money.
This constitutes a sufficient statement of the facts.
The appellant did not testify as a witness in his own behalf.
In submitting this case to the jury, the trial court applied the three-year statute of limitation and authorized a consideration by the jury of such funds or moneys which came into the hands of appellant within the three-year period prior to the 28th day of June, 1940 — the date on which the indictment was filed.
According to the account or final report, the amount received by appellant over and above the disbursements, during this three-year period, exceeded the sum of six thousand dollars, and was some fifteen hundred dollars in excess of the fee of $4,700.00 allowed the appellant as receiver.
The sufficiency of the evidence to support the conviction is challenged. This presents a troublesome question.
It is insisted that the facts are insufficient to establish the "corpus delicti," in that the fact that a crime was committed, as well as appellant's guilty connection therewith, are shown, solely and alone, by the uncorroborated and unsupported extrajudicial statements, acts, declarations, and admissions of the appellant.
The term "corpus delicti," in its broad sense, means proof that a crime has been committed by someone. Before a conviction can be had on a criminal charge, the prosecution must show the "corpus delicti," and that the accused was criminally connected therewith. Wharton's Criminal Law, 12th Ed., Vol. 1, Secs. 347-348.
It has long been the established rule of law in this State that the "corpus delicti" cannot be proved, alone, by the extrajudicial confessions or admissions of the accused; there must be corroborating circumstances. The authorities attesting this rule are numerous and will be found collated in 11 Texas Digest, Sec. 535, P. 836. The wisdom of this rule lies in the fact that no man should be convicted of a crime, the commission of which he confesses, unless the State shows, by other testimony, that the confessed crime was in fact committed by someone. The
contrary would authorize a return of conditions that existed in the days of the inquisition.
In the instant case, the "corpus delicti" lies in the proof of the fact that (a) the appellant was the receiver, and was, therefore, an officer of the court; (b) money came into his hands by reason of the fact that he was such receiver; and (c) he fraudulently converted such money to his own use. Such facts are all established, primarily, by the extrajudicial admissions of the appellant, and by his acts and declarations, and which show his guilt of the offense charged.
The material inquiry here presented, therefore, is whether there are facts or circumstances which corroborate the appellant's admissions. That appellant was the receiver, as charged, is abundantly shown by other testimony. We look now for the corroboration showing that, as a result of the receivership, funds or money came into appellant's hands. There is no direct testimony to so show. Notwithstanding the fact that the report gave the names of the parties from whom appellant said he received rent, none were called to testify to such fact.
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This prosecution arose under Art. 1540, P. C., which makes an officer of court guilty as for theft who fraudulently converts to his own use funds coming into his possession by reason of his office. The punishment assessed is five years in the State penitentiary.
The indictment charged, in effect, that appellant was an officer of court in that he was a receiver in a certain suit pending in the 108th Judicial District Court of Potter County, and that there came into his possession, by virtue of such office, the sum of ten thousand dollars, which he fraudulently converted to his own use.
The facts show that there was pending, in the above named court, a suit to foreclose certain liens upon the Melrose Apartments in the City of Amarillo. Appellant was duly appointed receiver of said property, pending final determination of the suit; and, on the 18th day of August, 1933, he qualified as such receiver by taking the oath and by giving the required bond for the faithful performance of his duties.
The order of the court appointing the receiver authorized among other things: (a) to demand, collect and receive all rents for the property; (b) to rent any part of the premises; (c) to keep the building in repair and insured; (d) to pay all expenses necessary or incident to the management of the property; (e) to secure a resident manager for the premises; and (f) to retain possession of the revenues derived pending final determination of the suit.
The receivership continued for a period of approximately five years, or until the 5th day of July, 1938, when it was terminated by a sale of the property under the judgment of the court.
Thereafter, one of the attorneys called upon appellant for a final report as receiver; in consequence of which appellant delivered to the attorney, what he termed and represented to be, his final report. It consisted of a statement showing the monthly receipts and disbursements throughout the entire period of the receivership. The names of the parties from whom receipts were received, as well as those to whom payments were made, were set forth. This account or report was not signed by the appellant nor was it in any manner attested by him. The appellant did, however, represent and state to the attorney to whom it was delivered that it was true and that it correctly reflected the receipts and disbursements. The account showed that appellant had received $17,782.20 more than he paid out. In other words, he was short that amount. Appellant freely admitted such fact, both orally and in writing. His only explanation was that he had spent the money and could not make payment thereof into court.
The attorney to whom the account was delivered filed same in the court and denominated it the receiver's final report.
On the 2nd day of September, 1938, an order was entered approving the receiver's final report, in which order it was found that the appellant had the sum above mentioned, which he was directed to apply to the payment, first, of the court costs, then to a fee of $4,700.00, allowed the receiver for his services, and the balance to the payment of other items of indebtedness, including taxes, as set forth in the order.
The judge of the court in which the proceedings were instituted and finally determined testified, upon the trial of this case particularly with reference to the approval of the final report. The effect of his testimony was that the order of approval was entered, alone, upon the unsigned and unattested account or report, as filed and presented by the attorney to whom it was delivered by the appellant. No evidence appears to have been introduced establishing the correctness of the report. The appellant did not testify at the hearing, nor did he appear in court, or before the judge, in connection therewith. In fact, the judge testified that he had never talked with appellant relative the report.
There was proof that appellant did not pay any of the items listed for payment in the order approving the final report. There was proof also that, during the period of the receivership, the apartment was at all times reasonably well filled with
tenants. The witness attesting this fact was unable to say that any tenant had ever paid the appellant any rental money.
This constitutes a sufficient statement of the facts.
The appellant did not testify as a witness in his own behalf.
In submitting this case to the jury, the trial court applied the three-year statute of limitation and authorized a consideration by the jury of such funds or moneys which came into the hands of appellant within the three-year period prior to the 28th day of June, 1940 — the date on which the indictment was filed.
According to the account or final report, the amount received by appellant over and above the disbursements, during this three-year period, exceeded the sum of six thousand dollars, and was some fifteen hundred dollars in excess of the fee of $4,700.00 allowed the appellant as receiver.
The sufficiency of the evidence to support the conviction is challenged. This presents a troublesome question.
It is insisted that the facts are insufficient to establish the "corpus delicti," in that the fact that a crime was committed, as well as appellant's guilty connection therewith, are shown, solely and alone, by the uncorroborated and unsupported extrajudicial statements, acts, declarations, and admissions of the appellant.
The term "corpus delicti," in its broad sense, means proof that a crime has been committed by someone. Before a conviction can be had on a criminal charge, the prosecution must show the "corpus delicti," and that the accused was criminally connected therewith. Wharton's Criminal Law, 12th Ed., Vol. 1, Secs. 347-348.
It has long been the established rule of law in this State that the "corpus delicti" cannot be proved, alone, by the extrajudicial confessions or admissions of the accused; there must be corroborating circumstances. The authorities attesting this rule are numerous and will be found collated in 11 Texas Digest, Sec. 535, P. 836. The wisdom of this rule lies in the fact that no man should be convicted of a crime, the commission of which he confesses, unless the State shows, by other testimony, that the confessed crime was in fact committed by someone. The
contrary would authorize a return of conditions that existed in the days of the inquisition.
In the instant case, the "corpus delicti" lies in the proof of the fact that (a) the appellant was the receiver, and was, therefore, an officer of the court; (b) money came into his hands by reason of the fact that he was such receiver; and (c) he fraudulently converted such money to his own use. Such facts are all established, primarily, by the extrajudicial admissions of the appellant, and by his acts and declarations, and which show his guilt of the offense charged.
The material inquiry here presented, therefore, is whether there are facts or circumstances which corroborate the appellant's admissions. That appellant was the receiver, as charged, is abundantly shown by other testimony. We look now for the corroboration showing that, as a result of the receivership, funds or money came into appellant's hands. There is no direct testimony to so show. Notwithstanding the fact that the report gave the names of the parties from whom appellant said he received rent, none were called to testify to such fact. Outside of appellant's admissions in evidence, the only fact or circumstance by which it may be said that appellant came into possession of money or funds as a result of the receivership lies in proof of the fact that appellant did assume the care, control, and management of the property, and that it was occupied by tenants throughout the period of his connection therewith. Do such facts show that such tenants paid rent to the appellant, or do they merely raise a presumption of such fact? If it be a presumption only, then such is insufficient, because the law recognizes presumptions against an accused in a criminal case when they arise as a matter of law, or by statute, in which event they become presumptions of law. Presumptions of fact are never indulged against an accused. 18 Tex. Jur., P. 116; Lott v. State, 17 Tex. App. 598[17 Tex. Crim. 598].
For a solution to this remaining question, we look to the following adjudicated cases:
The case of Cokeley v. State, 220 S.W. 1099, 87 Tex. Crim. 256, was one of rape upon an insane person. The accused confessed the crime. Because of the allegation of insanity, the State was unable to use the prosecutrix as a witness. There was proof that, on more than one occasion, the accused was seen at the home of the prosecutrix, at which times he could have engaged in sexual relations with the prosecutrix, proof of which was necessary to the establishment of the State's case. It was held
that such facts were insufficient to so show, or to establish, the "corpus delicti."
The case of Duncan v. State, 7 S.W.2d 79, 109 Tex. Crim. 668, was one of arson. The accused confessed that he burned the house. Other than this confession, the State showed only that the building burned. This was held to be insufficient to corroborate the confession so as to establish the "corpus delicti," it being held that, in order to constitute the offense of arson, the building must be set afire and burned as a result of the willful act of someone.
Other cases might be mentioned, but these are deemed sufficient to support the statement that evidence showing merely that an accused was in position to have committed the offense charged, or that the offense might have been committed by him, is insufficient to constitute the necessary corroboration of a confession establishing the "corpus delicti."
In the instant case, the corroborating circumstances, and especially those with reference to the receipt by appellant of rent money, show nothing more than that he was in position to receive and to collect the rents. A situation similar in legal effect existed in the Cokeley case, supra, where the accused was shown to have been in position to commit the rape charged. Such fact was held insufficient to corroborate the confession so as to show that the offense of rape had in fact been committed.
That the tenants occupying the apartment house paid rent to appellant is a reasonable deduction from the facts here presented. A deduction similar in legal significance could have been indulged in the Duncan case, supra, to the effect that the building was in fact burned by someone; yet such fact was held insufficient to corroborate the confession of the accused, in that case, that he burned the building.
The conclusion to be drawn from these cases is that, in a criminal case, proof of that which might have happened under a given state of facts does not warrant the conclusion that it did in fact so happen.
From what has been said, the conclusion is reached that, in the instant case, the State has failed to establish the "corpus delicti" in that, outside of appellant's extrajudicial admissions, acts, and declarations, there is no testimony corroborating the fact that the appellant did receive, and that there came into his possession, money or funds as a result of the receivership.
In view of another trial, we deem it advisable to discuss the following additional questions, presented for review:
The trial court did not err in holding that there was no variance between the style of the suit as described in the indictment and that shown by some of the evidence. The clerk of the court attested the fact that the suit was docketed in court under the style as alleged in the indictment. That the names of some of the parties to the suit did not correctly appear in the style of the case was immaterial, and proof of such fact did not constitute a variance. The State was warranted in describing the suit as same appeared on the docket of the court.
Appellant's contention that a receiver, as in this case, is not an officer of court, within the meaning of Art. 1540, P. C., was correctly overruled. Receivers are appointed by, derive their powers from, and act under the supervision of, the court appointing them. They are, therefore, officers of the court. Arts. 2293 and 2297, R. C. S.; Ex parte Britton,92 S.W.2d 224, 127 Tex. 85; 36 Tex. Jur., pp. 9, 10, and 11.
Because of the insufficiency of the evidence to support the conviction, the judgment of the trial court is reversed and the cause remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON STATE'S MOTION FOR REHEARING.