Ferrell v. State

152 S.W. 901, 68 Tex. Crim. 487, 1912 Tex. Crim. App. LEXIS 629

Opinions

PRENDERGAST, Judge.

— Appellant was the tax collector of Jones County for the term beginning after the general election in November, 1908, and held the office until some time in the latter part of July, 1910, when he resigned. He was indicted by the grand jury of Jones County for misapplying the money of the State which he had collected as taxes, and given the lowest penalty.

The law, Article 96 Penal Code, under which the conviction was had is, if any officer of the government, who is by law a receiver or depositary of public money '* * * shall fraudulently take or misapply, or convert to his own use, any part of such public money or secrete the same with intent to take, misapply or convert it to his own use * * * he shall be punished, etc. There were some fourteen counts in the indictment. Only two were submitted by the court to the jury for a finding. Both of these counts follow substantially and as literally as can be the form laid down by Judge White under said article of the Code in his annotation thereof, except that in the first of these counts after all of the proper and necessary allegations in the first part, charges, “which said sum of money, he, the said N. G. Ferrell, did then and there unlawfully and fraudulently take, misapply and convert to his own use”; in the other count it is charged, “which said money he, the said N. G. Ferrell, did unlawfully and fraudulently secret' the same with intent to take, misapply and convert the said money to his own use. ’ ’ It will be noted that in Judge White’s form it is that the accused did “unlawfully and fraudulently secrete and take and misapply and convert to his own use. ’ ’ The first count in this indictment leaves out the word “secrete” and uses the others contained in the statute, “did take and misapply and convert.” And the other count in this indictment presents secreting as a separate count but misspells the word “secrete” as contained in the statute.

The appellant made a motion to quash the second count above stated, because it did not follow the language of the statute defining the offense nor use other words conveying the same meaning and the first of said counts, together with certain others contained in the indictment, because they were surplusage and unnecessary and calculated to confuse and mislead the jury and prejudice appellant’s right.

There can be no question as to the correctness of the first count above stated. It follows the statute as strictly and as literally as could be in its language.

We take it that appellant’s objection to the other count, while not specifically so stated, is to the word “secret” instead of that used in the statute, “secrete.”

Our statute expressly provides that the “words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning, or which include the sense of the statutory words.” C. C. P. Article 460. Again, Article 460 is: “An indictment for any offense against the penal laws of this State shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” The next article is: “When a statute creating or defining any offense uses special or particular terms, an indictment on it may use the general term, which, in common language, embraces the special term.” Again, Article 453, is: “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.”

Mr. Webster defines “secrete” (the verb transitive), in his main first definition as: “To deposit in a place of hiding, to hide, to conceal.” He defines the adjective “secret”*as: “Hidden, concealed,” and the noun as: “ Something studiously concealed, a thing kept from general knowledge, what is not revealed, or not to be revealed, ’ ’ The Century Dictionary defines the verb transitive, “secrete”; “To make or keep secret, hide, conceal, remove from observation, or the knowledge of others.” And defines the adjective, “secret” as: “Set or kept apart, hidden, concealed,” and defines the noun “secret” as: ‘ ‘ Something studiously hidden or concealed, a thing kept from general knowledge, what is not or should not be revealed.”

So that the use of the word “secret” in this count of the indictment wherein it charges, “which said money h'e, the said N. G. Ferrell, did unlawfully and fraudulently secret the same with intent to take, misapply and convert the said money to his own use,” in our opinion is equivalent and means substantially the same thing as if the word “secrete,” the statutory word, has been used. Whit’s C. C. P. sec. 344, subd. 5 p. ’254, where some of the authorities are collated. And m our opinion there is no question but that a person of common understanding could know and did know from this allegation what is meant and with that degree of certainty that gave the appellant notice of the particular offense with which he is charged and did and would enable the court, on conviction, to pronounce a proper judgment in the case and would, without question, enable the appellant to plead the judgment in this cause in bar of any prosecution for the same offense where the word “secrete” instead of “secret’’-should be used.

The uncontradicted evidence in this case shows clearly that the tax assessor made out the tax roll for the year 1909; that it was submitted to the Commissioners’ Court and, perhaps after some corrections, it was approved by the Commissioners’ Court and then turned over to and received by appellant about the 16th of October, 1909, as such tax roll, and that he and his deputies proceeded to collect, by virtue of that tax roll, the taxes for said year in accordance with that roll; that he received a large amount of county tax and properly accounted to and paid to the county all that he had received; that He received a large sum of State tax and that he did not account for and did not pay to the State or to anyone for it, the sum of $6,465.65., and had not paid the said sum or any part thereof to the State or to anyone for the State, at the time of the trial of this case. It is true that appellant personally did not collect all of this tax himself. His properly authorized deputies did do so for him at his instance and with his knowledge and all of said money, other than what he himself took out of the collections as they were being made by him or his deputies, were deposited from time to time in three banks and that only so much of the funds so received by him and his deputies and deposited in said banks was paid to the State by his deputies and said bank as was directed and authorized by him, and that he personally took from the collections from time to time and drew from the banks all of said $6,465.65 and that no one else other than he has taken, misapplied, or converted the same to his own use, or secreted the same or any part thereof. It is unnecessary to detail this evidence. It is shown in a statement of facts of some 235 typewritten pages all of which we have read and considered.

By one bill appellant complains of the testimony of the tax assessor shown on some four or five typewritten pages, and in connection therewith, the affidavit that he made to the correctness of said rolls and the approval thereof by the Commissioners’ Court. By this bill appellant makes many objections to the introduction of said tax roll, but they are made as objections and not approved as facts by the court in allowing the bill. The gist of the matter, as we understand it, is that there was some uncertainty as to when the assessor made his affidavit to the correctness of said roll and some confusion in the copy of the certificate thereon by the Commissioners’ Court of whether it is the tax rolls for 1909, or that for 1908, but taking it as a whole, it is reasonably certain that it was the tax rolls for 1909 and not 1908, and that the tax assessor did make his affidavit substantially in compliance with the law, thereto. But even if there should be some doubt as to this there is no question whatever but that appellant received this tax roll as the tax roll for 1909, and that it was the assessment of the property of said county for 1909, and that he collected the money thereunder and that the money collected thereunder and thereon was the State’s money which he has taken, misapplied, converted to his own use or secreted.

By another bill appellant complains of the question and answer of the State’s witness, Will Griffith, who was one of appellant’s deputies and who collected and received as such in connection with another deputy or deputies the said taxes. The question was this: “State whether or not you have seen Mr. Ferrell (appellant) and if so, on how many occasions take money from the tax collector’s office out of the tax collections for his own personal use ? ” To which he answered: “He might have possibly taken as much as $5 or $10. I think I have seen him take as much as $5 or $10.” The objection to this testimony was that this was only the opinion of the witness as to whether the money appellant took was tax money and as to whether appellant took it for his own personal use. The bill is very meagre but as it is presented it is our opinion that this question and answer were proper. Certainly, if this witness saw appellant take, from time to time, the tax money which he and the other deputies were collecting and in charge of at the time, and knew that appellant was taking it for his own use, he was competent to so testify. It is not disclosed by the bill that the witness did not know what he testified, and if he did not, it could have been shown by further or cross-examination and if so shown, then his testimony could have been excluded, but as the bill presents it, it shows no error.

By other bills appellant complains of the testimony of the custodian of the bank books showing the account that appellant kept with said respective banks, the amount of his deposits and the amount of the checks against the same and the payment to appellant or on his checks, and that of his duly authorized deputies, of the funds so deposited in said bank. There are various objections to the testimony of these witnesses and the books. The witnesses fully qualified to testify as they did and identified and proved up the correctness of the books and the entries therein so as to clearly authorize théir introduction in evidence.

By another bill it appears that while appellant himself was being cross-examined by the district attorney, and having testified that he was thoroughly convinced what became of said tax money ($6,465.65), and that he had told a certain person that McJilton and Lige Davis and Covey were the men that stole it and that he had told said person that, the first time he talked to them about it and that “I still stick to it.” Thereupon the district attorney asked him to tell the time, the date, the amount and when and where that money, or one item that he could say that these parties or either of them ever appropriated. The appellant objected to this by his attorney because it would be mighty hard for him to tell the date, the hour and the minute when it was stolen and that said question was not proper; that the court thereupon remarked that he thought it a very proper question, that if “I say a man stole my money, I ought to be able to tell how, when and where he. got it. ’ ’ The appellant then answered by stating, ‘11 think they did it simply because there was nobody else had any show at it. As to whether I had a show at it and cheeked on it all the time, will say, No, sir, I did not on the State and county money. ’ ’ It seems that the appellant’s objection is'more to the remark of the court above stated than to the question to the appellant. Certainly the question to the appellant was not improper and he could explain in his answer why he could not fix the time, date, moment and when and where any of the money was stolen by the parties charged by him. The court in allowing the bill, qualified it by stating that the remark he made, above complained of, was made to one of the attorneys in answer to his argu ment in such low tone of voice that in the opinion of the court the jury did not hear it and it was not intended for them to hear it. So that if the remark of the court was improper, the hill as qualified shows no error.

Neither is there any error shown in another bill by appellant complaining that the district attorney was permitted to ask appellant on cross-examination of him if it was not a fact that he told Jap Spray-berry that he let Maggie Neville have $900 to go into the millinery business. Certainly the State had the right to show by appellant when he made himself a witness, what he did with this money in giving, or letting others have money during the time he is charged to have misapplied any of this State’s money.

Neither did the court err in permitting the many reports of the appellant to the State Comptroller, which were clearly and fully proven up and established, to be introduced in evidence, even though only some of them were signed by appellant personally, but all were either signed and sworn to by him or one of his legally authorized deputies.

The court did not err in refusing to give appellant’s special charge as follows: “You are charged that the term, ‘current money of the United States’ as used in the indictment in this case means legal tender, coins or legal tender treasury notes of the United States. It is therefore essential to a legal conviction that the State should prove the fraudulent conversion or misapplication by the defendant of legal tender, metallic coins, or of legal tender currency of the United States, ’’ the court having given the following charge: “You are therefore charged that if you believe from the evidence beyond a reasonable doubt, that the defendant, N. G-. Ferrell, was tax collector of Jones County and of the State of Texas, during the period of time from October the 1st, 1909, to July 12th, 1910, and that the defendant, N. G-. Ferrell, was then and there by law and in virtue of his office a receiver of and depositary of public money belonging to the State, and by virtue of his said office there had come into his hands and was then and there in his possession a certain sum of money, to wit: Six Thousand Four Hundred Sixty-five dollars and sixty-five cents current money of the United States of the value of Six Thousand Four Hundred Sixty-five dollars and sixty-five cents, and you further believe from the evidence beyond a reasonable doubt that the defendant did, in Jones County, Texas, at any time within the period of time embraced between October 1st, 1909, to July 12th, 1910, unlawfully and fraudulently misapply or convert to his own use any part of said sum of money, then you will find the defendant guilty as charged and assess his punishment at confinement in the penitentiary for any length of time in the discretion of the jury, provided it be for not less than two nor more than ten years, as the jury may determine and so state in their verdict. ’ ’

It is beyond question the settled law of this State that money and current money of the United States, means and includes gold, silver, copper or other coin, bank bills, government notes, or other eircnlative medium current as money. P. C., Art. 1419; Berry v. State, 46 Tex. Crim. Rep., 420; 80 S. W. Rep., 630; Butler v. State, 46 Texas Crim. Rep., 287; Lewis v. State, 28 Texas Crim. Rep., 140; Medders v. State, 54 Texas Crim. Rep., 494; Sims v. State, 64 Tex. Crim. Rep., 435; 142 S. W. Rep., 572, and cases cited therein.

It seems that appellant’s only defense was that he did not take, appropriate or convert any of this money, or secrete it, but that either the banks where the money had been deposited or his deputies had done so. The party named MeJilton was his main deputy, who helped to collect the taxes and the other two persons named in the bill above, Lige Davis and Covey, were two of the bankers. The court, therefore, did not err in charging the jury, ‘ ‘ and you are further charged that if you believe from the evidence that the money belonging to the State, with which the defendant in this case is charged with misappropriating, or converting to his own use, was in fact appropriated by another or by others than the defendant and without the knowledge or consent of the defendant, then in no event could you convict the defendant for any such sum appropriated, if any, nor consider same as a circumstance against him in this case.” No special charge was asked by appellant on this point at all.

The conviction in this case was secured partially by circumstantial evidence, — not wholly so. In such case it is not required of the court to give a charge on circumstantial evidence, but the court in this case did give a charge on circumstantial evidence which has uniformly, to the extent it goes, been approved by this court. Appellant in this case requested no charge whatever on the subject and his complaint to what the court did give is not that it should not have given any on the subject at all, but that it was not full enough. This presents no error.

The appellant complains of that portion of the charge of the court submitting to them for a finding, under the second count above stated, —that is, as to secreting the said money with intent to take, convert, or misapply the same to his own use, claiming there was no evidence in the record authorizing such a charge. In our opinion the evidence does amply authorize the submission of such charge. It tends to show that the appellant from time to time took from the drawer where the tax money was placed as it was collected, different sums of money and that he had access thereto at all times and that he himself sometimes collected the tax money; that he, from time to time, when he had large sums of money in each of the three banks where it was deposited when collected in his name as tax collector, instructed the banks, either personally, or through his different deputies whom he required to do so to place said funds to his individual personal credit .and change the account from him as tax collector to his personal individual name, and that he from time to time drew out different sums of this money which was not sent to the State, ultimately drawing it all out, leaving a deficit of $6,465.65 due to the State, and that from time to time during this time lie sent various sums of it by telegraph and otherwise to different women at different points in and out of this State, and that he run a house in Wichita Falls and got into trouble thereabouts for there running it as a disorderly house. Upon the “whole, as stated above, the evidence clearly authorized the court to submit that count of the indictment by this charge, which he did.

Besides this, the verdict in the case was a general one and even if this count in the indictment had been insufficient and this question improperly submitted to the jury, yet, unquestionably the other count was perfectly good, and the proof being clearly and amply sufficient to sustain a conviction under that, no reversible error is thereby shown. For an indictment may contain as many counts charging the same offense as may. be thought necessary to allege the offense under the statute and if anyone of the counts be sufficient the indictment is sufficient. (C. C. P., Art. 481.) And where the verdict is general and any one of the counts is sufficient and the evidence is sufficient to sustain that count, the court will apply the verdict to that count. Warner v. State, 66 Texas Crim. Rep., 356, 147 S. W. 265, and authorities there cited. It is needless to cite other authorities.

There is no other question attempted to be raised which it is necessary to consider. The evidence clearly and amply justified the verdict and the judgment will be affirmed.

Affirmed.