Mayse v. State

242 S.W.2d 371, 156 Tex. Crim. 360, 1951 Tex. Crim. App. LEXIS 1586

Opinions

DAVIDSON, Judge.

The conviction is under the count of the indictment charging a violation of Art. 95, P. C., making unlawful the embezzlement by a city secretary of funds belonging to the city and coming into his possession by virtue of his office. The punishment was assessed at two years in the penitentiary.

The city of Brady is a municipal corporation, incorporated under the general laws of this state. Appellant was the duly elected city secretary. The record sufficiently reflects that the duties of the city assessor and collector of taxes, as that of city treasurer, had been transferred to the office of city secretary. As a general proposition, it may be said that any and all sums of money paid to the city was through the office of city secretary. A local bank was the city depository where all funds belonging to the city were deposited.

The indictment charged the embezzlement by appellant of $5,154.03.

The state was not, however, under the burden of establishing that such sum was embezzled. To the contrary, the conviction was authorized by a showing of the conversion of any sum of money.

The record is very voluminous. It would serve no useful purpose to attempt to state the facts at length.

As we understand, the state showed that over the period of time covered by the allegations of the indictment there came into the hands of the appellant, as city secretary, the sum, larged ly by checks, of $9,608.28, which was deposited in the depository. The state does not contend that appellant embezzled any of these funds or that he fraudulently withdrew any of such .funds from the depository. It is the position of the state, finding support in the testimony, that appellant did not correctly enter the deposits in his cash book or cash receipts journal, and that the items so entered amounted to $3,755.43 less than those deposited in the depository. It was the contention of the state that such discrepancy furnished a cover-up by which appellant took and converted to his own use cash and checks coming into his possession which did not reach the depository, and, in this manner, the defalcation by appellant is circumstantially shown.

In addition to the foregoing facts, there was testimony showing that appellant, upon being questioned as to the shortage, admitted that he was short “about Three Thousand Dollars.” As to a particular item of $200, appellant admitted that he “took it.”

Appellant did not testify. He offered no affirmative defense.

Since the facts show that appellant was short in his accounts and that he admitted the taking of some money, the facts warrant the conviction.

The proof being sufficient to show that appellant specifically converted the sum of $200, as admitted by Mm, warranted the jury’s conclusion that he took money, as alleged in the indictment, and no variance between the allegations of the indictment and the proof is shown.

Numerous bills of exception appear, complaining of the receipt in evidence of the various items and checks appellant was shown to have received and deposited in the depository, the objection to this testimony being that same was irrelevant, immaterial, and prejudicial, and that there was no showing that appellant ever received or converted to his own use any of said items or checks.

This proof was all a part of the state’s case and a circumstance in the chain of events by which the state showed the ultimate conversion of city funds. For that purpose, such testimony was admissible.

Other bills of exception have been examined, and are overruled without discussion.

The judgment of the trial court is affirmed.

Opinion approved by the court.