Winkler, J.
The appellant was indicted for the theft of money amounting in the aggregate to seven dollars, and was on the trial convicted of embezzlement. The controlling question presented for our consideration on this appeal is, whether an indictment which charges theft, in the ordinary language for charging that offense, and nothing more, will support a conviction for the crime of embezzlement, under the laws and the Constitution of this State. In our opinion this question must be answered in the affirmative.
The statute law of this State enumerates certain offenses which include offenses of a less degree of culpability than the main offense charged. Thus it is provided that the offense of murder “includes all the lesser degrees of culpable homicide, and also an assault with intent to commit murder.” Also there are provisions defining what minor degrees are included within the charge of assault; and so of various other offenses, as maiming, arson, burglary, theft, perjury, bigamy, adultery, riot, kidnapping, etc. The provision with regard to theft and applicable to the case under consideration is in the following language: “Theft, which includes swindling, embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code.” Here wo have a positive legislative declaration that the offense of theft includes that of embezzlement as a minor grade, or inferior degree of culpability, than that of theft. Code Crim. Proc. art. 714, subdivision six.
Again: the law provides that when, as in the present case, “ a prosecution is .for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information.” Code Crim. Proc. art. 713. So far as our [429] information extends it has been the practice of the courts to give effect to this latter article.
For example: Under an indictment which charges murder, a conviction for manslaughter, which is a lesser degree of culpable homicide, has invariably been upheld by both the Supreme Court and this court (the trial being regular in other respects), evidently upon the idea that manslaughter is included within the charge of murder, the only offense set out in the indictment. The same may be said as to other offenses which by the law are included within the major offense charged in the indictment, though minor in degree.
With reference to the present case it may be urged against the conviction that there is ho relationship existing between the two offenses of theft and embezzlement, so that the latter can with propriety be said to be a minor grade or degree of the former. Such a position is, we aro of opinion, untenable. In fact it is no longer an open question in this court that the two offenses are kindred offenses; and they have been so considered in several instances, notably in the opinion prepared by Judge Clark on the rehearing of the case of Leonard v. State, 7 Texas Ct. App. 443; and in Simco v. State, 8 Texas Ct. App. 406.
It will be noticed that article 714 of the Revised Code of Criminal Procedure contains the provision that theft includes swindling and embezzlement, and this revised article was in force when the present case was tried. As was said in Simco’s case, “the offense of embezzlement, while nearly akin to larceny, and generally regarded as of that family, is nevertheless a distinct offense and essentially variant from the latter. Theft is the fraudulent taking of personal property under certain designated circumstances, and necessarily involves the idea of an unlawful acquisition. Embezzlement is the fraudulent conversion of similar property after its possession has been lawfully acquired. This variance (the opinion pro[430] ceeds) in the character of the two offenses led the Legislature, in the adoption of the Revised Code of Criminal Procedure, to provide expressly that in a prosecution for theft a conviction might be had for embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code (citing Code Crim. Proc. art. 714, clause 6). The conviction in that case was not sustained, for the reason and only for the reason that the prosecution was under the former Code, and because the revised provision could not be held to relate back to and cover a case determined before the change took effect. In other words the provision that under an indictment for theft the offense of embezzlement was included could not, under Calloway v. State, 7 Texas Ct. App. 583, be made to act retrospectively. In our opinion Simco’s case is in point, and must be held decisive of the present case.
It is, however, contended in behalf of the appellant that the law cited above, to the effect that theft includes embezzlement, is in violation of the spirit and letter of the Constitution. The argument advanced is (to state it briefly) that, whereas the Constitution (Bill of Rights, art. 1, sec. 10) provides “ That .in all criminal prosecutions the accused . . . shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof,” therefore an indictment which charges theft is not sufficient to inform the accused that he is charged with an offense which will support a conviction for embezzlement; that in this respect clause 6, art. 714, Code Crim. Proc., is unconstitutional. In so far as the question is involved in the present case, it will he sufficient to say that it is not within the power of the courts to decide that an act of the Legislature, a sworn body, and a coordinate department of the government, is void merely by reason of the policy or expediency of the enactment. The law-making branch of the government decides for itself as to the propriety or expediency of its enactments. [431] The courts can only declare a law unconstitutional when the Legislature shall have transcended the powers conferred upon it by the Constitution, which controls alike both the legislative and the judicial departments. It is a general rule that felony cases must be prosecuted by indictment, the Constitution having provided “that no person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine,' or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia when in actual service in time of war or public danger.” Sec. 10, art. 1. Hence the Legislature, under this provision, is deprived of the constitutional authority to dispense with an indictment of a grand jury, except in the several cases stated in the exceptions mentioned in the paragraph last quoted. But in the present case the defendant could have been prosecuted by information, it being but a petty theft, the property alleged to have been stolen amounting to only seven dollars in the aggregate. This, however, is of no importance to the question under consideration.
Free access — add to your briefcase to read the full text and ask questions with AI
Winkler, J.
The appellant was indicted for the theft of money amounting in the aggregate to seven dollars, and was on the trial convicted of embezzlement. The controlling question presented for our consideration on this appeal is, whether an indictment which charges theft, in the ordinary language for charging that offense, and nothing more, will support a conviction for the crime of embezzlement, under the laws and the Constitution of this State. In our opinion this question must be answered in the affirmative.
The statute law of this State enumerates certain offenses which include offenses of a less degree of culpability than the main offense charged. Thus it is provided that the offense of murder “includes all the lesser degrees of culpable homicide, and also an assault with intent to commit murder.” Also there are provisions defining what minor degrees are included within the charge of assault; and so of various other offenses, as maiming, arson, burglary, theft, perjury, bigamy, adultery, riot, kidnapping, etc. The provision with regard to theft and applicable to the case under consideration is in the following language: “Theft, which includes swindling, embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code.” Here wo have a positive legislative declaration that the offense of theft includes that of embezzlement as a minor grade, or inferior degree of culpability, than that of theft. Code Crim. Proc. art. 714, subdivision six.
Again: the law provides that when, as in the present case, “ a prosecution is .for an offense consisting of different degrees, the jury may find the defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment or information.” Code Crim. Proc. art. 713. So far as our [429] information extends it has been the practice of the courts to give effect to this latter article.
For example: Under an indictment which charges murder, a conviction for manslaughter, which is a lesser degree of culpable homicide, has invariably been upheld by both the Supreme Court and this court (the trial being regular in other respects), evidently upon the idea that manslaughter is included within the charge of murder, the only offense set out in the indictment. The same may be said as to other offenses which by the law are included within the major offense charged in the indictment, though minor in degree.
With reference to the present case it may be urged against the conviction that there is ho relationship existing between the two offenses of theft and embezzlement, so that the latter can with propriety be said to be a minor grade or degree of the former. Such a position is, we aro of opinion, untenable. In fact it is no longer an open question in this court that the two offenses are kindred offenses; and they have been so considered in several instances, notably in the opinion prepared by Judge Clark on the rehearing of the case of Leonard v. State, 7 Texas Ct. App. 443; and in Simco v. State, 8 Texas Ct. App. 406.
It will be noticed that article 714 of the Revised Code of Criminal Procedure contains the provision that theft includes swindling and embezzlement, and this revised article was in force when the present case was tried. As was said in Simco’s case, “the offense of embezzlement, while nearly akin to larceny, and generally regarded as of that family, is nevertheless a distinct offense and essentially variant from the latter. Theft is the fraudulent taking of personal property under certain designated circumstances, and necessarily involves the idea of an unlawful acquisition. Embezzlement is the fraudulent conversion of similar property after its possession has been lawfully acquired. This variance (the opinion pro[430] ceeds) in the character of the two offenses led the Legislature, in the adoption of the Revised Code of Criminal Procedure, to provide expressly that in a prosecution for theft a conviction might be had for embezzlement, and all unlawful acquisitions of personal property punishable by the Penal Code (citing Code Crim. Proc. art. 714, clause 6). The conviction in that case was not sustained, for the reason and only for the reason that the prosecution was under the former Code, and because the revised provision could not be held to relate back to and cover a case determined before the change took effect. In other words the provision that under an indictment for theft the offense of embezzlement was included could not, under Calloway v. State, 7 Texas Ct. App. 583, be made to act retrospectively. In our opinion Simco’s case is in point, and must be held decisive of the present case.
It is, however, contended in behalf of the appellant that the law cited above, to the effect that theft includes embezzlement, is in violation of the spirit and letter of the Constitution. The argument advanced is (to state it briefly) that, whereas the Constitution (Bill of Rights, art. 1, sec. 10) provides “ That .in all criminal prosecutions the accused . . . shall have the right to demand the nature and cause of the accusation against him and to have a copy thereof,” therefore an indictment which charges theft is not sufficient to inform the accused that he is charged with an offense which will support a conviction for embezzlement; that in this respect clause 6, art. 714, Code Crim. Proc., is unconstitutional. In so far as the question is involved in the present case, it will he sufficient to say that it is not within the power of the courts to decide that an act of the Legislature, a sworn body, and a coordinate department of the government, is void merely by reason of the policy or expediency of the enactment. The law-making branch of the government decides for itself as to the propriety or expediency of its enactments. [431] The courts can only declare a law unconstitutional when the Legislature shall have transcended the powers conferred upon it by the Constitution, which controls alike both the legislative and the judicial departments. It is a general rule that felony cases must be prosecuted by indictment, the Constitution having provided “that no person shall be held to answer for a criminal offense unless on indictment of a grand jury, except in cases in which the punishment is by fine,' or imprisonment otherwise than in the penitentiary, in cases of impeachment, and in cases arising in the army or navy, or in the militia when in actual service in time of war or public danger.” Sec. 10, art. 1. Hence the Legislature, under this provision, is deprived of the constitutional authority to dispense with an indictment of a grand jury, except in the several cases stated in the exceptions mentioned in the paragraph last quoted. But in the present case the defendant could have been prosecuted by information, it being but a petty theft, the property alleged to have been stolen amounting to only seven dollars in the aggregate. This, however, is of no importance to the question under consideration.
The indictment in this case.informed the defendant that he was called on to answer a charge of theft of money alleged to belong to one Jordan. The indictment was sufficient to apprise the defendant of the nature and cause of the action against him, and the statute informed him that the jury might acquit him of the major offense charged therein and at the same time convict of the minor grade of the offense, which the Legislature has said is included within the greater; so that we are wholly unable to see that any provision of the Constitution has been impinged or infracted by the legislative enactment. The question is one of proof rather than one of pleading, somewhat analogous to the rule in indictments for assault with intent to murder. How, if one be indicted for the [432] theft of property of a certain description, the property of an individual named in the indictment, and on the trial the proof should not be sufficient to warrant a conviction for the major offense charged in the indictment, can he be heard to complain at being convicted of an inferior degree of the offense charged against him? Or can he be heard to complain that the jury has convicted of a misdemeanor and not of felonious theft? Our conclusions are that that portion of the Code found in clause 6 of art. 714 of the Code of Criminal Procedure which authorizes a conviction for embezzlement under an indictment for theft must, under the authorities, be maintained by the judiciary as not in violation of that provision of the Constitution which declares that in all criminal prosecutions the accused shall have the right to demand the nature and cause of the accusation against him.
It is further argued by the appellant’s counsel, and also assigned as error, that the court erred in permitting the State to prove, over objection by the accused, that the defendant was a clerk or employee of Jordan, and that 'he received the money alleged to have been stolen in the course of such employment, when there was no allegation under which such evidence was admissible. Whether there was error or not in this proceeding is dependent upon the main question already considered. If a conviction for embezzlement is supported by an indictment for theft, it must be so supported by such proof as would constitute the offense for which the conviction was had. Let it be supposed that under the indictment herein, the State had proved the taking and the conversion of the money by the defendant, but in the further progress of the trial it had appeared that the defendant, at the time of the taking and conversion, was a clerk and in the employment of the alleged owner; in such a case the prosecution must fail so far as theft is concerned, and unless a conviction for embezzlement could be had under the in[433] dictment, he must be acquitted on the ground that it had appeared that a trust or fiduciary relation between the accused and the owner had been shown. This testimony was properly admitted under the law in order to show that, if the major offense had not been committed, the minor had. Hence there was no error in admitting evidence of such facts as would constitute the minor offense.
Nor did the court err in withdrawing the issue of theft from the jury, and submitting to their consideration the single question of embezzlement. It was the duty of the court to charge the jury the law of the case as made by the facts testified to by the witnesses. The proof showing that the relationship between the owner of the money and the defendant was that of employer and clerk, whilst this testimony was not sufficient to warrant a conviction for that degree qf fraudulently acquiring the property, known as theft, it at the same time established one of the relations between them which bring the taking and appropriation within the letter and spirit of the law which defines embezzlement, as that offense is defined by the Penal Code, art. 786.
With reference to the present case the indictment apprised the defendant as to the time and place he was accused of fraudulently taking and appropriating to his own use the property—money — of his employer, and whether at that time he was a clerk of the alleged owner or not was certainly a fact within his own knowledge; and hence the course of proceeding could not have been a surprise to him.
In our opinion the court, by the ■ general charge and in the first special instruction given at the request of the defendant’s counsel, gave to the jury full and complete as well as accurate instructions as to the law of the case as developed by the evidence adduced on the trial, and did not err in refusing to give the special charges Nos. 2 and 3, requested by the defendant’s counsel. It is apparent [434] from the evidence and the charge of the court that there was a clear abandonment on the trial below of a prosecution for theft, and that the whole case turned upon the question of embezzlement. The main controversy, then, was as to whether under the indictment for theft a conviction could legally be found of embezzlement under the law. This was the main, the controlling question on the trial; the other questions are but mere incidents to this controlling question. The court below in its rulings took what we believe to be a correct view of the law of the case, and based its ruling upon the evidence; and in charging the jury as to the law seems to have kept in view the one controlling idea that under an indictment for theft a ¡conviction could be had for embezzlement, if the proof warranted said verdict.
Whilst we have not attempted to consider seriatim the various questions presented in the interesting and able briefs presented in behalf of the appellant, yet we have carefully examined all the matters arising upon the record. Upon the whole our conclusions are that the indictment is sufficient under the law as cited to support ■the verdict of the jury and the judgment of the court; that the rulings of the court upon the evidence were correct, and that the jury were correctly instructed as to the law of the case as made by the evidence.
Finding no error in the proceedings, the judgment is affirmed.
Affirmed.
Hurt, J., dissenting.