
    MARTIN v. STATE.
    (No. 7196.)
    (Court of Criminal Appeals of Texas.
    May 16, 1923.
    Rehearing Denied Oct. 17, 1923.)
    1. Indictment and information <&wkey;125(13) — Indictment for theft of two notes held not duplicitous.
    An indictment charging accused with the theft of two notes of the alleged value of $500 each, and describing each note, was not duplicitous since it is proper to charge in one count theft of various articles, and to describe them therein.
    
      2, Larceny <&wkey;| — Charge of theft involves issue of fraudulent taking of property.
    The charge _ of theft involves the issue of the fraudulent taking of property.
    S. Larceny <&wkey;i43 — Evidence held admissible on question of fraud, as within the charge of theft.
    Where accused, charged with theft of two notes, asserted as a defense that he had taken the notes under a claim of right and by permission of the owner, evidence that after coming into possession of the notes by means of a false and forged order as claimed by the prosecution, accused collected the money due on the notes and appropriated it, was admissible as affecting the question of fraud involved in the charge of theft.
    On Motion for Rehearing.
    4. Indictment and Information i&wkey;l 19 —Larceny _&wkey;>28( I) — -Indictment held sufficiently certain to charge theft of two notes; aver-ments as to one, if incomplete, being sur-' plusage.
    An indictment charging accused with the theft of two notes of even date of equal amounts, with the same maker and same payee, held sufficiently certain, and if as to one of the notes the indictment was incomplete that averment could be treated as surplusage.
    5. Indictment and information <&wkey;ll25(l) — Duplicitous indictment charges more than one offense in same count.
    A duplicitous indictment is one that charges in the same count more than one offense.
    
      6. Larceny <&wkey;53 — 'Testimo-ny that owner of notes collected by accused did not receive proceeds held competent on issue raised.
    Where accused, charged with the theft of two notes, asserted as a defense that the money collected by him was forwarded to J. as a deposit for the benefit of the owner (prosecuting witness), who received the money, it was competent for prosecuting witness to testify he had never received any of the proceeds.
    7. Larceny &wkey;>7l(2) — Instruction held fairly to present theory of defense that notes accused was alleged to have stolen were obtained! by him in representative capacity.
    Where accused, charged with the theft of notes, asserted as a defense that he was authorized by the owner under a written order to obtain the notes from the bank, an instruction fairly presented accused’s theory of defense where it informed the jury that, even though accused acquired the notes by a fraudulent device, no conviction could, be had unless at the very time he received them he formed the intent to appropriate them to his own use and to deprive the owner of their value.
    8. Criminal law <&wkey;ll 128(4) — Appellate court held without authority to consider affidavit filed several months after record was filed on appeal.
    Appellate court held without authority to consider an affidavit signed by J. supporting accused’s theory of defense, where the affidavit was filed several months after the record was filed on appeal, and no statement from J. was presented in the trial court, and no motion made for a continuance.
    Appeal from District Court, Gregg County; P. O. Beard, Judge.
    P. B. Martin was convicted of felony theft, and appeals.
    Affirmed.
    J. N. Campbell and E. B. Martin, both of Longview, for appellant.
    W. A. Keeling, Atty. Gen., and C. L. Stone, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Gregg county of the offense of felony theft, and his punishment fixed at five years in the penitentiary.

Appellant was charged by indictment with the theft of two notes of the alleged value of $500 each. Each of said notes is described in the indictment, because of which fact'appellant made a motion to quash the indictment upon the ground of duplicity. Said instrument is not subject to the complaint. It is proper to charge in one count theft of various articles and to describe them therein.

There is but one bill of exceptions in this record, and that complains of the action of the trial court in permitting the owner of the alleged stolen notes to testify that this appellant had collected the money called for by said notes, and had not accounted for same to said owner. The only objection made to said testimony was that it did not bear on the issue involved in the indictment. We regret our inability to agree to this contention. The charge of theft involves .the issue of the fraudulent taking of the property. Apparently it was claimed by the appellant in this case that he did take the property, but under a claim of right and by permission of the owner. The fact that after coming into possession of the notes, by means of a false and forged order as claimed by the state, appellant collected the money due on the notes and appropriated it, would be permissible as affecting the question of fraud involved in the charge of theft.

In appellant’s motion for new trial it is insisted that the evidence does not support the judgment. We cannot agree to this proposition. The issue was sharply drawn as to whether appellant came into possession of the notes by means of an order signed by the alleged owner of same, or whether said order was in fact forged by appellant. This issue was submitted to the jury in terms so appropriate and apparently satisfactory to appellant' as that no exceptions were taken thereto. Appellant claimed that he came into possession of the notes as the legitimate representative of the owner, and that he collected something over $1,000 due thereon, and that he sent it to a man in Oklahoma by the name of Jacstone for some kind of invest-, ment or safe-keeping for the alleged owner. He claimed that he had sent to the owner an order upon Jacstone for the money. Evidently the contention of the state was that the claim of appellant, that’ he sent the money of'said owner to Jacstone and that ■ Jacstone had it and had failed to account to the owner for it, was but a flimsy subterfuge, offered for the purpose of excusing appellant for his failure to account to the owner for said property. These matters were before the jury and were for their determination. They seem to have settled all conflicts in the evidence against appellant’s contention, and we find ourselves unable to conclude the testimony of appellant’s- taking and appropriation of the notes to be so unsatisfactory as to not support the verdict.

Finding no error in the record, an affirmance will be ordered.

On Motion for Rehearing.

MORROW, P. J.

The descriptive averment of the indictment reads thus:

“ * * * That * * * F. B. Martin did then and there unlawfully and fraudulently take one promissory note for the principal sum of five hundred dollars, executed by B. E. Martin, and L. L. Mackey on the 7th day of February, 1020, and payable to W. O. Martin seven months after date, of the value of five hundred dollars; one promissory note for the principal sum of five hundred dollars, executed by B. E. Martín and L. L. Mackey, on the 7th day of February, 1920, and payable, to the order of "W. O. Martin, nine months after date, of the value of five hundred dollars.”

There is no such lack of certainty in the descriptive averments in the indictment as condemns it. • It is obvious that it charges the theft of two notes of even date, of equal amounts, with the same maker and the same payee. If as to one of the notes the indictment was incomplete, that averment might he treated as surplusage. Hickman v. State, 22 Tex. App. 441, 2 S. W. 640; Hammons v. State, 29 Tex. App. 448, 16 S. W. 99; Branch’s Ann. Tex. P. C. § 606. There is but one offense embraced in the indictment. One that is duplicitous charges in the same count more than one offense. Rumage v. State, (Tex. Cr. App.) 65 S. W. 64; Branch’s Ann. Tex. P. C. § 506. It is the state’s theory and testimony that each of the notes were deposited by the owner with a certain bank for safe-keeping, and were fraudulently obtained by appellant upon a forged order. It was undisputed that he collected the amount of the notes, and he claims to have given the money obtained on them to one Jaestone, in person, at Longview, Tex., as a deposit for the benefit of W. O. Martin, and that W. O. Martin received it. It was therefore competent for W. O. Martin to testify that he had never received any of the proceeds of the notes.

It was shown without controversy that appellant presented to the bank with whom the notes were placed a written order purporting to bear the signature of the owner. W. O. Martin denied the execution of the order, and disclaimed having given any authority to the appellant to secure the. possession of the notes. There was evidence introduced by the appellant, in addition to his own testimony supporting his theory, that in obtaining the notes he acted on authority from the owner and that the written order was genuine. These issues were pertinently placed before the jury in a written charge to which there was no objection urged and in which we have observed no fault. Apparently it accurately and fairly presented appellant’s defensive .theory and clearly informed the jury that, even though appellant acquired the notes by a fraudulent device, there could be no conviction unless at the very time he received them he formed the intent to appropriate them to his own use and •deprive the owner of their value.

The record shows no motion for a continuance, but appellant claims in his motion for rehearing that he expected Jaestone, who resided in McAlister, Okl., to be present ■at the trial and give testimony supporting appellant’s defensive theory. No statement from Jackstone was presented in the trial ■court, but several months after the record was filed in this court, there was placed among the papers on file an affidavit signed Y. D. Jaestone, which reads thus:

“The State of New Mexico, County of Union.
“Before me, the undersigned authority, on this day personally appeared Y. D. Jaestone, who, after being by me duly sworn upon oath, says that he knows F. B. Martin of Longview, Texas, and has so known him for several years, and that he knows W. O. Martin of Texarkana, Ark., having had ‘ business transaction -with the said W. O. Martin on one occasion in Mc-Alister, Okl. In this, E. B. Martin, during the month of November, 1920, delivered to me, in Longview, Tex., severál hundred dollars, and in this amount he delivered to me one thousand and sixty-nine dollars belonging to W. O. Martin, all the money the said F. B. Martin delivered to me was deposited with me in the name of F. B. Martin, trustee, for safe-keeping; he furnishing me with a list of the owners and the amount due each one. Some time after this time, latter part of January, 1921, F. B. Martin had the amount of W. O. Martin deposited with me in the name of W. O. Martin, and I sent W. O. Martin a receipt showing this deposit to his account to him at Texarkana, Ark., R.. F. D., also sent to F. B. Martin a copy. About ton days after this, W. O. Martin, drew his entire deposit, $1,069 in person at McAlister, Okl., from me, and gave me receipt for same which I have. He seemed happy over collection of this money for him by F. B. Martin and spoke in high terms of F. B. Martin.
“Y. D. Jaestone.
“Sworn and subscribed to before me this the 14th day of September, 1923.
“[Seal.] F. S. Canfield,
“Notary Public, Union County, New Mexico.
“My commission expires May 23, 1927,”

There exists in this court no authority to consider this affidavit for any purpose. McBride v. State, 93 Tex. Cr. 257, 246 S. W. 394. It has been embraced In the opinion in order to give the appellant such benefit from it, if any, as might result from such use of it.

The motion for rehearing is overruled. 
      <§sni"or other cases see same topic and KEV-NUMBER in all Key-Numbered Digests and Indexes
     