Reed v. State
This text of 149 S.W.2d 119 (Reed v. State) is published on Counsel Stack Legal Research, covering Court of Criminal Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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Appellant was convicted under an indictment charging misapplication of the county funds of Gray County, and was by the jury sentenced to serve two years in the penitentiary.
It appears from the facts that Earl Talley, Sheriff of Gray County, died sometime in the early part of June, 1938, and his wife, Roberta Talley, was doubtless appointed to serve out her husband’s unexpired term. That sometime in April, 1938, Earl Talley’s office was in possession of an execution issued out of a district court of Harris County in cause No. 233352, Federal Land Bank of Houston v. H. H. Luttrell, et al., and it seems that such execution was levied upon certain properties in Gray County, and by the sheriff such was sold under said execution. That the costs accruing for the services of the sheriff’s department were $27.64, and an additional sum of $12.48 was due as printer’s fees, evidently for giving notice of such levy and contemplated sale. It is further shown that in the account of Earl Talley for April, 1938, there was shown as fees earned by this sheriff and uncollected for that month the sum of $27.64, which report shows to have been signed and sworn to as correct by Earl Talley, Sheriff, by Buford Reed, deputy. This item never again appears in any further reports of the sheriff, either as paid or as uncollected.
It is further shown that these reports were rendered for Earl Talley, as well as for Roberta Talley, by appellant, who was their office deputy. It is further shown that the Federal Land Bank issued its check No. 311049 on July 15, 1938, payable to the order of the Sheriff of Gray County in the sum of $40.12, stating therein that same was in payment of. sheriff’s costs and commissions in the above mentioned cause of Bank v. Luttrell, which check was shown to have been paid. As shown by the sheriff’s account, the printer’s fee of $12.48 deducted from the total of $40.12 leaves a payment of fees and commissions of $27.64, the amount alleged in the indict *506 ment as unlawfully appropriated from the county by appellant. The record further shows that such amount of $27.64 has not been paid into the county. It is also shown by two witnesses that appellant admitted to them that he had received this money and not reported this amount, and had spent the same himself.
Bill of exceptions No. 1 complains because of the introduction in evidence of the appointment of Buford Reed, appellant, as a deputy by Roberta Talley, sheriff, for many and varied reasons, but suffice it to say that the county clerk testified that such-appointments were a part of the records of his office, and same was on file therein as a public document, and we are not impressed with the idea that it was necessary for the State to show the preliminary steps necessary to the making of such appointment before its introduction in evidence. It is also observed by us that the oath of office of appellant of date June 10, 1938, taken under and by virtue of such appointment, appears in the record without objection. We think the designation itself was the best evidence of his appointment, and overrule this bill.
Appellant’s bill of exception. No. 2 is concerned with an effort to quash the indictment herein because, as appellant contends, while the indictment alleges that the appellant as a deputy sheriff was an officer of Gray County, nevertheless he was not such an officer as is contemplated by Art. 95, P. C., under which article this prosecution is based, wherein it is said: “If any officer of any county x x x shall fraudulently take,” etc. We are not in accord with such contention. We think, under the authority of State v. Brooks, 42 Texas Reports, 62, that this is an incorrect proposition of law. In the Brooks case, decided by the Supreme Court before the creation of this court, the State appealed from an order of the trial court quashing an indictment against Brooks which had alleged that Brooks was an officer of the government, to-wit: a deputy sheriff, etc. The statute under which the Brooks case was filed was very similar to the statute here utilized, except that instead of using the- words county, city or town, it used the words “the government,” and included some further provisions not now in the law. In a long and well reasoned opinion Justice Gould holds that a deputy sheriff is an officer of a county, and can be charged as such for misapplying public funds. This case has also been cited by'this court in the 4 Texas App. 410, 23 Texas App. 617, 28 Texas App. 141, as well as many other cases.
Bill of exceptions No. 3 complains because Roberta Talley, *507 sheriff, was allowed to testify that on July 15, 1938, Buford Reed was a deputy sheriff under her as sheriff; that he was her office deputy, and he was the .one designated to handle the money that came into her office. As was said in discussing bill No. 1, it was shown by the record that Roberta Talley designated and appointed appellant as her deputy, and we find in the record without objection his oath of office as such, and we can see no error in allowing this deputy’s superior officer to detail what appellant’s special duties were under her. As stated heretofore, we dó not think it essentially important to set forth all the details surrounding this appointment. The main thing to be here proven is was he a deputy sheriff, and as such did he receive any money, and did he pay the same where the law directs.
Bill of exceptions No. 4 is concerned with the allowing an auditor to testify that in an audit of the sheriff’s accounts of Gray County, that there was an item of $27.64 which he found was received by the sheriff’s office, which amount did not show to have been paid over to Gray County. While the books themselves may have been the best evidence of such a failure to pay, on account of their size and voluminousness and their many involved transactions, we think the testimony of the auditor, who had audited these books, could be used to show, what-he found relative to this item as a shorthand rendition of facts rather than to have offered each item therein and have the jury listen to see if the wanted item of $27.64 appeared in the funds listed as paid to Gray County.
Bill of exceptions No. 5 is a resume of all the grounds submitted to the court in appellant’s requested peremptory charge to return a verdict of not guilty. We think such a request was properly overruled.
Appellant also contends that there is no proof that Gray County was under the salary bill as passed by the Legislature, with later amendments, and therefore it is not apparent that fees earned by the sheriff of that county belonged to Gray County. We judicially know that according to the last preceding census, at the time of the passage of this bill, Gray County was a county that contained 20,000 inhabitants or more, and as such, under Art. 3912-e, Sec. 1, Vernon’s Civ. Statutes, it appears that such county compensated its county officers under the salary system, and that all' fees earned by them belonged to the county, and were placed in what is called the “Officers *508 Salary Fund” to be used by the county for certain purposes. The pertinent part of such article being as follows:
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149 S.W.2d 119, 141 Tex. Crim. 503, 1941 Tex. Crim. App. LEXIS 225, Counsel Stack Legal Research, https://law.counselstack.com/opinion/reed-v-state-texcrimapp-1941.