
    PYE v. STATE.
    (No. 6694.)
    (Court of Criminal Appeals of Texas.
    Feb. 22, 1922.)
    1. Criminal law <@=>594(3), 598(10) — Excuse for failure of diligence in obtaining witnesses held insufficient; continuance refused when absent witness is dead.
    A continuance in an embezzlement prosecution for absence of witnesses was properly refused, where it appeared that one of the witnesses was dead, and no diligence was shown as to the others, defendant having been indicted May 19, 1921, and procured the issuance of no process until June 2d thereafter; an unsupported affidavit that he had employed a nonresident attorney, who failed to have process issued because of his illness, not being sufficient as an excuse.
    2. Criminal law <@==>595(10) — Continuance properly refused-, where testimony sought .to be obtained merely conclusions.
    It is not error to refuse a continuance for absence of witnesses in a criminal case, where their testimony as set out in the application consists of conclusions.
    3. Embezzlement <@=>38 — Check, proceeds of which were embezzled, held admissible.
    In a prosecution for embezzlement by a real estate agent of part of the proceeds of a cheek given him by his principal to pay off a vendor’s lien on land that the principal was purchasing, the check was admissible.
    4. Criminal law 1119(4) — Bill of exceptions, not disclosing alleged erroneous argument of state’s attorney, insufficient.
    A bill of exceptions to a remark of the state’s attorney in argument in a criminal case, which does not set out the remark, presents nothing for consideration on appeal.
    5. Criminal law <§=>1 120(4) — Bill complaining of question asked witness must set out answer.
    A bill of exceptions in a criminal case, complaining that a witness was asked a certain question, presents nothing for consideration on appeal, where the answer to the question is not stated.
    6. Criminal law <@=>1 120(6) — Bill of exceptions to admission of evidence must show that matter objected to was inadmissible.
    A bill of exceptions on appeal in a criminal case, based on admission of evidence, presents no question, where it does not set out the surrounding circumstances, or reasons showing that the matter objected to was not admissible.
    7. C fen nal law <@=3406(6) — Defendant’s declarations as to receipt of money and failure to pay over held admissible in embezzlement case.
    In a prosecution for embezzlement by a real estate agent of the proceeds of a check given to him by his principal to pay off a vendor’s lien on land the principal was purchasing, evidence that defendant told witness he did get the money from the principal, and that he did not know why he had not paid it over as instructed, held admissible.
    8. Criminal law <@=>814(8, 9) — Instruction hot based on evidence held properly refused.
    In a prosecution of a real estate agent for embezzling the proceeds of a check paid to him by his principal to release a vendor’s lien, a requested charge that, if defendant deposited the money received in the name of a real estate and loan corporation, he should be acquitted, was properly refused, in the absence of evidence of the existence of such corporation; it appearing that defendant himself was doing business under its name.
    9. Criminal law <@=>814(8, 9) — Instruction, not supported by evidence, properly refused.
    In a prosecution of a real estate agent for embezzling proceeds ’of a check paid to him by his principal to release a vendor’s lien on property which the principal was purchasing, an instruction to acquit if defendant had in fact paid the money on the note held correctly refused, as not being supported by the evidence.
    10. Embezzlement <§=>4 — Essential elements necessary to be proved stated.
    In a prosecution of a real estate agent for embezzling the proceeds of a check given him by his principal to release a vendor’s lien on property which the principal was purchasing, the essential questions involved were whether defendant received the money as agent, whether he subsequently appropriated the money to his own use, and whether the conversation was with a fraudulent intent.
    Appeal from Criminal District Court, Harris County; C. W. Robinson, Judge.
    P. E. Pye was convicted of felony embezzlement, and he appeals.
    Affirmed.
    E. T. Branch, Dist. Atty., of Houston, and R. 6. Storey, Asst. Atty. Gen., for the State.
   LATTIMORB, J.

Appellant was convicted of felony embezzlement in the criminal district court of Harris county, and his punishment fixed at two years in the penitentiary.

Appellant was a real estate agent, and from the evidence negotiated for the purchase of certain real property in the city of Houston, acting in the capacity of agent for one Smith. There was a vendor’s lien, evidenced by a note, against said property, the amount of which was $950, and appellant informed Mr. Smith that, if he would pay him that amount, he in turn would pay off the lien note and secure a release of same. Thereupon Mr. Smith gave to appellant his check for $950, which was paid by Mr. Smith’s banjr. Only a part of said note was paid to Mr. Wallace, the holder thereof, and when the purchase of the property was finally consummated, because of the fact that Mr. Wallace had only received $300 from appellant, Mr. Smith was compelled to pay and did pay to Mr. Wallace $650 additional in order to settle said lien note. The indictment, trial, and conviction of appellant followed.' We have no doubt from the evidence of the fact of appellant’s agency for Mr. Smith within the contemplation of our embezzlement statutes. Nor do we think the record lacking in evidence of Mr. Smith’s nonconsent to the appropriation of his money by appellant. In fact, the record contains abundant evidence of the fact that the money was not paid to Mr. Wallace, and that, notwithstanding Mr. Smith’s repeated efforts to secure its return from appellant, he had been entirely unsuccessful.

Appellant asked for a continuance because of the absence of three witnesses. The refusal of this continuance was made part of the grounds of the motion for a new trial. The state controverted appellant’s said motion, and upon evidence then heard the court found that one of said absent witnesses was dead. No diligence was shown as to the other two. Appellant was indicted on May 19, 1921, and procured the issuance of no process until June 2d thereafter. The unsupported affidavit of appellant that he employed a nonresident attorney, who failed to have process issued because of illness, would not suffice. There should have been some additional showing of such facts. Nor do we think the testimony of said two absent' witnesses of such materiality as to have called for a continuance. Their testimony, as set out in the application, consists of conclusions. It was not stated that either of them was present at any transaction that took place between appellant and Mr. Smith, or knew of his own knowledge anything pertaining thereto.

Appellant has a number of bills of exception to matters occurring on the trial, none of which show error. The admission in evidence of the check for $950, given by Mr. Smith to appellant, was correct. A bill of exceptions to a remark of the state’s attorney in argument, which does not set out such remark, presents nothing for our consideration. Nor does the bill complaining that a witness was asked a certain question, the answer to which question is not stated in said bill.

Bill of exceptions No. 5 complains that a witness was allowed to answer affirmatively that he had seen a number of checks of the Houston Real Estate & Loan Corporation. Neither this bill nor bill of exceptions No. 7 sets out any of the surrounding circumstances, or other reason by which this court may know that the matter objected to was not admissible.

Complaint that witness Wallace was permitted to testify that appellant told him that he did get the money of Mr. Smith, and that he did not know why he had not paid it over to Mr. Wallace, would seem to us without foundation.

We think the court correctly refused the request for an instructed verdict on behalf of appellant. A requested charge to the effect that, if appellant deposited the money received by him from Mr. Smith in the name of the Houston Real Estate & Loan Corporation, he should be acquitted, was properly refused. Prom what appears in the record we gain no information that there was any such corporation, and are led to infer that appellant himself was doing business under the name of the Houston Real Estate & Loan Corporation. We think there was no error in refusing appellant’s special charge, which is in effect a repetition of his requested instruction of not guilty.

We find nothing in the record tending to raise the issue of a temporary appropriation on the part of appellant. The money of Mr. Smith went into his possession. He was shown to have admitted that he got it, and did not know why he had not paid it according to Mr. Smith’s instructions, and it was shown that he had no money in the bank at the time of the trial.

A requested instruction that appellant should be acquitted, if he had in fact paid said money on said note to Mr. Smith, was correctly refused, as same was not only wholly unsupported by any testimony, but was contrary to all the evidence introduced.

Appellant’s bill of exceptions No. 15 is based upon an erroneous conception of the law. It would make no difference in what name appellant deposited the money of Mr. Smith, or that he was keeping his account in the bank in the name of the Houston Real Estate & Loan Corporation. The questions involved were whether he received the money as agent of Mr. Smith, and that he subsequently appropriated it to his own use, and that such conversion was with fraudulent intent.

Binding nothing in the record presenting a reversible error, the judgment of the trial court will be affirmed. 
      
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