McMorries v. State

279 S.W.2d 90, 161 Tex. Crim. 608, 1955 Tex. Crim. App. LEXIS 1505

• Court: Court of Criminal Appeals of Texas
• Decided: April 20, 1955
• Docket: 27522
• Status: Published

Opinions

BELCHER, Judge.

This conviction is for the offense of felony theft by false pretext; the punishment, five years in the penitentiary.

The trial was had in Nolan County on a change of venue from Martin County.

The state’s evidence shows that on May 26, 1954, appellant was county judge of Martin County and had been serving continuously as such officer since January 1, 1949; that as county judge he was also ex officio county school superintendent during the same period of time, and that the resigned as such officer on June 6, 1954.

It was shown that the Grady Independent School District No. 905, commonly known as the Grady Consolidated Elementary District No. 905, was located in Martin County and was being operated as a common school district because of the number of its scholastics, and that its records were kept in the office of the county judge; that the First National Bank of Stanton, Martin County, Texas, was the depository for the funds of said school district; that the trustees thereof paid its financial obligations by issuing vouchers by which they authorized the county judge, as ex officio county school superintendent, to issue checks on the school’s depository fund in said bank to pay the accounts which they had approved.

It was further shown that appellant operated a dry cleaning business in Stanton known as the Western Cleaners and, on December 7, 1953, purchased merchandise for his said business in the amount of $175.40 from the Southwest Fixture Company in Dallas; that on May 26, 1954, appellant issued and signed a check on the “Local Fund — Grady Consolidated Elementary of District No. 905” in the First National Bank of Stanton, with the notation thereon “Merchandise for school,” which he forwarded by mail to the Southwest Fixture Company, with a slip of paper attached to the check containing the following notation “I have let one of my schools have these fixtures, please credit my account, I am sorry for this delay. (Signed) James Mc-Morries”; that no voucher was issued or other authority given by said trustees for the purchase or payment of said merchandise; that said check was actually paid to Southwest Fixture Company out of said school’s funds by said depository bank in payment for the merchandise previously purchased by appellant for his own personal use.

The evidence shows that all local tax funds belonging to the school district were deposited by its tax collector and the Texas Education Agency directly in the bank depository for said school and did not come into or pass through the hands of the trustees or the county judge — ex officio county school superintendent.

Appellant, while testifying in his own behalf, admitted that he purchased and received the merchandise in question for his personal use and wrote said check to pay for said merchandise, and also wrote the note which he attached to the check, and mailed both to the Southwest Fixture Company with the intent that the note and the notation on the check cause it to be presented for payment and that the notation on the check be relied upon by the bank in paying it. He further stated that the money which paid this check was on deposit in the First National Bank of Stanton and belonged to the local fund of the Grady Independent School District; and that the trustees of said school did not at any time issue a voucher for the payment of said merchandise or in any manner authorize payment of the check here in question.

By Bill of Exception No. 1, appellant contends that the court erred in submitting to the jury the issue of his guilt of theft by false pretext under Count No. 1 of the indictment. Appellant insists that the evidence shows he was in lawful possession of the school funds in his official capacity and that the court should have submitted under Count No. 3 of the indictment the offense of misapplication of funds as defined under Arts. 95 and 97, V.A.P.C.

We find no statute authorizing appellant to act as the fiscal agent for said school district or to receive in his official capacity money belonging to said school district. The evidence shows that appellant was not empowered by said trustees to receive or hold any money for said school, or to write checks upon school funds in the bank depository without a voucher authorizing that the account be paid. Thus, the school funds were not in possession of appellant and, in the absence of his possession of such funds, he could not have been guilty of any offense defined by Arts. 95 and 97, supra. Warswick v. State, 36 Texas Cr. R. 63, 35 S.W. 386; Art. 2763, V.A.C.S.; Art. 2763a, V.A.C.S.; Art. 2832, V.A.C.S.

Appellant contends that there is a fatal variance between the allegations in the indictment and the proof in that the evidence fails to show that he obtained any money as alleged in the indictment because the credit received on his account is incorporeal in its nature and could not be subject to theft.

The evidence shows that the appellant obtained the money of the school district by a false pretext, designed and directed by him, through the use of the check, payable to his creditor and drawn on said school fund, by which he obtained and appropriated money belonging to the school district to his own use and benefit by the payment of his personal debt. We conclude that there is no fatal variance between the allegations in the indictment and the proof as to the property obtained from the school district and appropriated by appellant to his use and benefit. Berdell v. State, 87 Texas Cr. R. 310, 220 S.W. 1101; Wimer v. State, 120 Texas Cr. R. 576, 48 S.W. 2d 296; White v. State, 123 Texas Cr. R. 282, 58 S.W. 2d 530; Conner v. State, 133 Texas Cr. R. 429, 111 S.W. 2d 723.

By Bill of Exception No. 2, appellant complains of the state being allowed to prove on cross-examination of the witness Dyer that he was a member of the grand jury that indicted appellant and that he had seen the check on which this case is based, over his objection that it was in violation of the statutes prohibiting the disclosure of evidence before a grand jury, and was prejudicial and inflammatory.

This bill does not show that the witness saw the check in the grand jury room, or that he disclosed any matter in his testimony that occurred in the grand jury room. We perceive no error in this bill.

By Bill of Exception No. 3, appellant contends that it was error to allow the state to prove by its witness Miles that appellant owed the school district $875, over his objection that such testimony was prejudicial, inflammatory and had no connection with the offense here charged and, by Bill No. 4, he further urges error because the state was allowed to prove by appellant, on cross-examination, after he had testified in his own defense, that he had drawn “two months salary far in advance of the time the same was due and converted the same to his own use” over his objection that the same was prejudicial, inflammatory and had no bearing on the present case.

Appellant testified that the school district was in debt to him for certain services that he had rendered and that the check upon which this prosecution is based was intended by him to be in payment for such services which he thought would be approved by said school board.

Under the facts here shown, the testimony as to the financial obligations between the appellant and the school district was admissible to rebut his evidence that the county was indebted to him as well as to show fraudulent intent. Sherman v. State, 124 Texas Cr. R. 273, 62 S.W. 2d 146.

Finding no reversible error, the judgment of the trial court is affirmed.

Opinion approved by the Court.