The offense is theft; the punishment, confinement in the penitentiary for three years.
The conviction was under an ordinary indictment for theft as defined in article 1410, Penal Code.
Appellant was sheriff of Walker county. On May 31, 1929, he sent his account to the Comptroller, showing that the state owed him fees amounting to $1,626.95. On the same date the Comptroller issued a warrant, payable to appellant, in the sum of $2,626.95. This warrant was mailed to appellant, and he received it in Walker county. It appears that the excess of a thousand dollars was due to an error on the part of the employee issuing the warrant. On June 3, 1929, appellant endorsed
the warrant and deposited it in the Huntsville State Bank, in Walker county, receiving a general deposit slip showing that his account was credited with the sum of $2,626.95. On June 5, 1929, the warrant was cleared in Austin, Travis county; $2,626.95 being paid to the Austin National Bank by the state treasurer. This amount was later transmitted to the Huntsville State Bank. The officers of the Huntsville State Bank testified that they did not accept the warrant for collection, but stated in substance that they bought it from appellant. Appellant did not testify.
It is insisted that, under the provisions of article 197, Code of Criminal Procedure, the venue was in Walker county. We quote: "Where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property or in any other county through or into which he may have carried it."
It appears that the holding in Townsend v. State, 51 S.W.2d 696, is applicable here. In that case, in the opinion on the motion for rehearing, this court said:
"We have carefully considered appellant's argument in this regard, and are still of opinion that the venue was properly laid in Travis county, and wish to say, in addition to what we said originally, that since fees payable by the state are payable by and out of the state treasury, which is located in Austin, Travis county, Tex., the venue of every illegal collection and receipt of state-owed fees prosecuted under article 365, P. C., would appear in every case conceivable by us at this time to properly be laid in Travis county, unless otherwise fixed by statute. The question of demand aside, the state parts with no fees, and is not deprived of any money as fees; nor does the officer or other person authorized to demand and receive fees, who holds fraudulent warrants or evidences of indebtedness against the state treasury, receive the money thereby or therein illegally called for, in so far as receipt thereof is made illegal by article 365, P. C., until same has been paid by or from the state treasury. The officer or other person authorized by law to demand or receive fees from the state of Texas, who willfully uses an innocent agent, or willfully sets in motion the machinery through whose operations, without knowledge of the wrong, the money is taken from the state and out of its treasury, no matter where he starts his machinery or procures his agent, must be held triable at the place where the money is gotten from the state, i.e., the place where the offense of reception of state funds is consummated or effected, and where the state parts with its money upon the false warrant or account. * * *
"The same matter is discussed and authorities cited in Houston v. State, 98 Tex.Crim. Rep., 285, 265 S.W. 585. The fact that the officer or other person whose account, warrant, etc., was the basis of the prosecution, and who inaugurated the movement whose consummation took the money out of the treasury, may have deposited such warrant or sold it outright in Bastrop, Tex., or Washington, D.C., would not seem in the least to affect the question of venue of the prosecution; nor would the fact that such warrant had to or did pass through various innocent hands or channels before it came to the state treasury in Travis county, where the state is by such means induced to part with its money, alter the principle or affect the question of venue, under a proper application of article 68, P. C. The presence in our statute of this article and its interpretation by our courts makes inapplicable authorities cited by appellant. By what we have above said we do not wish to be understood as holding that one who, by the use of a false warrant or evidence of indebtedness against the state, defrauds some private person, may not be tried for such act in the county where it takes place."
From Branch's Annotated Penal Code, sec. 2428, the following is taken: "If defendant fraudulently procured a person innocent of any fraudulent intent to take the property for him, it is a taking through an innocent agent, and a taking by an innocent agent is a taking by defendant. In a legal sense, defendant was present when the act was done if he fraudulently caused that act to be done by an innocent agent although in fact he was in a different county or state."
In support of the text the following authorities are cited: Madison v. State, 16 Texas App., 442; Doss v. State, 21 Texas App., 509, 2 S.W. 814; Dale v. State, 32 Tex.Crim. Rep.,22 S.W. 49; Sikes v. State, 28 S.W. 688; Lane v. State,41 Tex. Crim. 559, 55 S.W. 831; Walls v. State,43 Tex. Crim. 70, 63 S.W. 328; Jessup v. State, 44 Tex. Crim. 83,68 S.W. 988; Farris v. State, 55 Tex. Crim. 481,117 S.W. 798.
In applying the law to the facts the court instructed the jury as follows: "Bearing in mind the foregoing instructions, I charge you that if from the evdence in this case you are satisfied beyond a reasonable doubt that the defendant, N. L. Speer, on or about the 31st day of May, 1929, obtained from the possesson of the State of Texas with the consent of an agent or employee of the State of Texas a treasury warrant dated May 31, 1929, for the sum of $2626.95, payable to the order of N. L. Speer, Huntsville, signed W. Gregory Hatcher, State Treasurer
and countersigned S. H. Terrell, State Comptroller of Public Accounts, and the said warrant called for the payment of $1,000.00 in excess of the amount actually due the defendant, N. L. Speer, from the State of Texas at said time and the said $1,000.00 excess was the property of the State of Texas; and if you further find from the evidence in this case beyond a reasonable doubt that upon the receipt of such warrant the said N. L. Speer deposited the same in the Huntsville State Bank in Huntsville, Texas, for the purpose of obtaining said $1,000.00 excess and with the intent of appropriating the same to his own use and benefit and as a result of such deposit did take, or cause to be taken, from the State of Texas the $1,000.00 excess in Travis county, Texas, and appropriate the same to his own use and benefit with the intent to deprive the said owner of the value thereof you will find the defendant guilty of theft as charged in the indictment and assess his punishment at confinement in the State pententiary for not less than two nor more than ten years as you may determine and state in your verdict."
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The offense is theft; the punishment, confinement in the penitentiary for three years.
The conviction was under an ordinary indictment for theft as defined in article 1410, Penal Code.
Appellant was sheriff of Walker county. On May 31, 1929, he sent his account to the Comptroller, showing that the state owed him fees amounting to $1,626.95. On the same date the Comptroller issued a warrant, payable to appellant, in the sum of $2,626.95. This warrant was mailed to appellant, and he received it in Walker county. It appears that the excess of a thousand dollars was due to an error on the part of the employee issuing the warrant. On June 3, 1929, appellant endorsed
the warrant and deposited it in the Huntsville State Bank, in Walker county, receiving a general deposit slip showing that his account was credited with the sum of $2,626.95. On June 5, 1929, the warrant was cleared in Austin, Travis county; $2,626.95 being paid to the Austin National Bank by the state treasurer. This amount was later transmitted to the Huntsville State Bank. The officers of the Huntsville State Bank testified that they did not accept the warrant for collection, but stated in substance that they bought it from appellant. Appellant did not testify.
It is insisted that, under the provisions of article 197, Code of Criminal Procedure, the venue was in Walker county. We quote: "Where property is stolen in one county and carried off by the offender to another, he may be prosecuted either in the county where he took the property or in any other county through or into which he may have carried it."
It appears that the holding in Townsend v. State, 51 S.W.2d 696, is applicable here. In that case, in the opinion on the motion for rehearing, this court said:
"We have carefully considered appellant's argument in this regard, and are still of opinion that the venue was properly laid in Travis county, and wish to say, in addition to what we said originally, that since fees payable by the state are payable by and out of the state treasury, which is located in Austin, Travis county, Tex., the venue of every illegal collection and receipt of state-owed fees prosecuted under article 365, P. C., would appear in every case conceivable by us at this time to properly be laid in Travis county, unless otherwise fixed by statute. The question of demand aside, the state parts with no fees, and is not deprived of any money as fees; nor does the officer or other person authorized to demand and receive fees, who holds fraudulent warrants or evidences of indebtedness against the state treasury, receive the money thereby or therein illegally called for, in so far as receipt thereof is made illegal by article 365, P. C., until same has been paid by or from the state treasury. The officer or other person authorized by law to demand or receive fees from the state of Texas, who willfully uses an innocent agent, or willfully sets in motion the machinery through whose operations, without knowledge of the wrong, the money is taken from the state and out of its treasury, no matter where he starts his machinery or procures his agent, must be held triable at the place where the money is gotten from the state, i.e., the place where the offense of reception of state funds is consummated or effected, and where the state parts with its money upon the false warrant or account. * * *
"The same matter is discussed and authorities cited in Houston v. State, 98 Tex.Crim. Rep., 285, 265 S.W. 585. The fact that the officer or other person whose account, warrant, etc., was the basis of the prosecution, and who inaugurated the movement whose consummation took the money out of the treasury, may have deposited such warrant or sold it outright in Bastrop, Tex., or Washington, D.C., would not seem in the least to affect the question of venue of the prosecution; nor would the fact that such warrant had to or did pass through various innocent hands or channels before it came to the state treasury in Travis county, where the state is by such means induced to part with its money, alter the principle or affect the question of venue, under a proper application of article 68, P. C. The presence in our statute of this article and its interpretation by our courts makes inapplicable authorities cited by appellant. By what we have above said we do not wish to be understood as holding that one who, by the use of a false warrant or evidence of indebtedness against the state, defrauds some private person, may not be tried for such act in the county where it takes place."
From Branch's Annotated Penal Code, sec. 2428, the following is taken: "If defendant fraudulently procured a person innocent of any fraudulent intent to take the property for him, it is a taking through an innocent agent, and a taking by an innocent agent is a taking by defendant. In a legal sense, defendant was present when the act was done if he fraudulently caused that act to be done by an innocent agent although in fact he was in a different county or state."
In support of the text the following authorities are cited: Madison v. State, 16 Texas App., 442; Doss v. State, 21 Texas App., 509, 2 S.W. 814; Dale v. State, 32 Tex.Crim. Rep.,22 S.W. 49; Sikes v. State, 28 S.W. 688; Lane v. State,41 Tex. Crim. 559, 55 S.W. 831; Walls v. State,43 Tex. Crim. 70, 63 S.W. 328; Jessup v. State, 44 Tex. Crim. 83,68 S.W. 988; Farris v. State, 55 Tex. Crim. 481,117 S.W. 798.
In applying the law to the facts the court instructed the jury as follows: "Bearing in mind the foregoing instructions, I charge you that if from the evdence in this case you are satisfied beyond a reasonable doubt that the defendant, N. L. Speer, on or about the 31st day of May, 1929, obtained from the possesson of the State of Texas with the consent of an agent or employee of the State of Texas a treasury warrant dated May 31, 1929, for the sum of $2626.95, payable to the order of N. L. Speer, Huntsville, signed W. Gregory Hatcher, State Treasurer
and countersigned S. H. Terrell, State Comptroller of Public Accounts, and the said warrant called for the payment of $1,000.00 in excess of the amount actually due the defendant, N. L. Speer, from the State of Texas at said time and the said $1,000.00 excess was the property of the State of Texas; and if you further find from the evidence in this case beyond a reasonable doubt that upon the receipt of such warrant the said N. L. Speer deposited the same in the Huntsville State Bank in Huntsville, Texas, for the purpose of obtaining said $1,000.00 excess and with the intent of appropriating the same to his own use and benefit and as a result of such deposit did take, or cause to be taken, from the State of Texas the $1,000.00 excess in Travis county, Texas, and appropriate the same to his own use and benefit with the intent to deprive the said owner of the value thereof you will find the defendant guilty of theft as charged in the indictment and assess his punishment at confinement in the State pententiary for not less than two nor more than ten years as you may determine and state in your verdict."
Appellant excepted to the foregoing charge on the ground that it did not require the jury to find that he had the intention of appropriating the money at the time of the reception of the warrant, but authorized a conviction if he formed the intent to appropriate the money at the time he deposited the warrant in the Huntsville State Bank, which was after he had come into possession of the same. The opinion is expressed that, under the facts reflected by the record, the exception was not well taken. Appellant was charged with appropriating a thousand dollars in money. The warrant he received from the comptroller's office was the means by which he secured this sum of money. If appellant formed the intent to appropriate the money at the time he used the bank as an innocent agent for obtaining the money by placing the warrant in the bank, and receiving credit for the amount thereof, and did appropriate the money, it would appear that the act becomes criminal under the terms of article 1413, P. C., which provides: "The taking must be wrongful, so that if the property came into the possession of the person accused of theft by lawful means, the subsequent appropriation of it is not theft, but if the taking, though originally lawful, was obtained by any false pretext, or with any intent to deprive the owner of the value thereof, and appropriate the property to the use and benefit of the person taking, and the same is so appropriated, the offense of theft is complete."
In Hedge v. State, 229 S.W. 862, this court, speaking
through Judge Lattimore, said: "If A owes B $7.50, and by mistake gives in settlement a check for $75.00, which B accepts, places in his pocket, and presents at the bank, and, upon payment to him by the bank of the $75.00 called for by said check conceives the intent to appropriate the $67.50 excess, he would be guilty of theft of such excess."
A careful examination of appellant's contentions leads us to the conclusion that reversible error is not presented.
The judgment is affirmed.
Affirmed.
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.