
    KATZ v. STATE.
    (No. 6706.)
    (Court of Criminal Appeals of Texas.
    Nov. 22, 1922.)
    1. Embezzlement <&wkey;48(l) — Where ownership of funds embezzled is. put in issue; it is error to refuse instruction thereon.
    In a prosecution for embezzlement, where the allegation of ownership of the funds involved has been put in issue, it is error to deny special charges submitting such issue to jury.
    2. Witnesses &wkey;>380 (5) — Where prosecuting witness fails to testify as at former trial, it cannot be introduced to impeach him.
    Where, in a prosecution for embezzlement, the prosecuting witness fails to give expected testimony .such as he gave at a former trial, such testimony from the former trial may not be admitted under the pretext of impeaching the witness, merely for the sake of getting it before the jury.
    3. Witnesses &wkey;>380(5) — Rule permitting impeachment of one’s own witness d'oes not allow admission of testimony otherwise inadmissible.
    Though it is a well-settled rule that one may impeach his own witness for an affirmative injurious statement which comes as a surprise, this rule cannot be invoked to get before the jury, under the guise of impeachment, otherwise inadmissible facts of which the witness merely failed to testify.
    <§ss>For other cases see same topic and. KEY-NUMBER, in all Key-Numbered Digests and Indexes
    Appeal from Smith County Court; D. R. Pendleton, Judge.
    M. Katz was convicted of embezzlement, and he appeals.
    Reversed and rem'anded for new trial.
    Bulloch & Ramey and Simpson, Lasseter & Simpson, all of Tyler, for appellant.
    R. 6. Storey, Asst. Atty., Gen., for -the State.
   HAWKINS, J.

Conviction is for misdemeanor embezzlement, punishment assessed at a fine of $500 and one year’s imprisonment in the county jail.

The specific charge against appellant is that he was the bailee of a certain check bailed, to him by I. Levine. The check was drawn against the People’s Guaranty State Bank of Tyler, Tex., payable to the order of I. Grossberg for $55, signed by F. Levine. It is alleged that the check was written by I. Levine, and that the money, although in the bank in the name of E. Levine, was owned by I. Levine; that appellant converted the check into $55 in money, and that as the agent of I. Levine was the bailee of the check and was in possession of the proceeds by virtue of such agency; that said money was owned by I. Levine and that appellant fraudulently and without the consent of I. Levine embezzled $10 thereof.

It is urged that the evidence does not support the allegations of the information, and therefore the judgment should not be permitted to stand. It appears from! the statement of facts that F. Levine owned two stores in the city of Tyler, one a grocery store, which...he looked after personally; the dry goods store was to a certain extent under the management of I. Levine, the son of F. Levine. We gather from the record that the grocery store account, as well as the personal account of F. Levine, was kept at the Citizens’ National Bank; that the bank account for the dry goods store was kept at the People’s Guaranty State Bank, but both accounts were in the name of F. Levine. I. Gross-berg also was the owner of a dry goods store in the city of Tyler.' Appellant, who is an uncle of I. Levine, had been negotiating with Grossberg for the purchase of some shoes. Grossberg and he had taken an invoice of the shoes which amounted to about $55. It appears from the record that appellant had reported to F. Levine that these shoes could be purchased, and by the direction of F. Levine appellant went to I. Levine and informed him that his father had directed him to give appellant a check for the $55 with which to purchase the shoes. Under this information I. Levine wrote the check in ques-tioA but directed appellant at the time to buy the shoes as cheaply as possible.

Upon returning to Grossberg, appellant informed him that I. Levine would not agree to give more than $45 for the shoes, and after some remonstrance Grossberg agreed to accept this amount. He knew appellant had a cheek payable to him (Grossberg), but did not know for what amount the check had been drawn, and having recently been involved in bankruptcy proceedings did not himself wish to go to the People’s Guaranty State Bank to cash the cheek for fear they would hold the money. He authorized appellant to cash the same for him, whereupon appellant had his son (Solomon Katz) to take the check in question to the Citizens’ National Bank and indorse Grossberg’h name thereon and collect the money, which was given to appellant. He delivered to Grossberg $45 and retained $10. All parties seemed to be pleased with the trade, and the shoes appear to have been well worth the $55. I. Levine thought he had paid $55 for them, and Grossberg did not know the check was for more than $45.

A few days after the transaction in a conversation between I. Levine and Grossberg it was discovered that appellant had kept- $10 of the money, which was promptly claimed by both of them, and both made demands of Katz for the $10 he had retained. The legal question revolves around the pivotal issue as to whether the money in the People’s Guaranty State Bank belonged to I. Levine, in the sense that it would support the allegations to that effect in the information. Upon this point the testimony of I. Levine is substantially as follows: He denied that he operated the dry goods store in question but averred that it was owned and operated by his father; that he (I. Levine) worked there and helped his father out; that his father worked in the grocery store but also came around to the dry goods store; that he gave the $55 check to appellant because hi's father had directed him to do so. In answer to the direct question as to whether he (I. Levine) was manager of the store he replied:

“Well, I am not by its manager, I am just helping out mein fadder. Yes, I am the manager of that store when mein fadder is away. I am staying there.”

In reply to the question, “Have you got authority to write any checks on the bank?” he answered, “No, I have to ask him, he tell me.”

The check book on the People’s Guaranty State Bank being submitted to the witness, he admitted that he had written all of the cheeks, but claimed that before he wrote them it was necessary for him to explain them in his language to his father with reference to the purchase of goods, and that he could not write a check unless he told his father; that when a bill came to the store for anything it was necessary for him to explain to his father everything about it, and then his father would authorize him to draw the check. The witness further stated that his father did not read very well, and sometimes would give a personal check and get the banks confused and that “they charge it in this account.” We are not able to determine just what witness meant by the last-quoted expression. Being questioned further with reference to the management of the store, this witness answerd:

“Well, I have got a manager of it. I work for mein fadder and under his supervision. Yes, I am just an employee or just work there in the store. In buying goods and paying for them it is mein fadder’s money that I use.”

With reference to the payment for goods, he stated that he usually consulted his father before issuing the check, and that his father had to give him authority to issue them. We think the foregoing statement of the evidence relative to the point at issue fairly reflects the record. There is no question but that the money in both the banks belonged to P. Levine. We think it is made fairly clear by the evidence that I. Levine had no such general authority to draw checks against the funds in the People’s Guaranty State Bank as would support the allegation that he was the owner thereof. In a sense he was the manager of the dry goods store, and we may assume from the record that he deposited the proceeds from the sale of goods in the People’s Guaranty State Bank, but here his direction and supervision over the funds seems to have ceased. It was only by the direction of his father (F. Levine) that he drew checks affecting the funds in that bank. We do not believe the evidence supports the allegation in the information that I. Levine was the owner of such funds. He had no such management and control thereof as would bring him within the definition of a special owner under the law. Furthermore, there is nothing in the record which shows' that the $55 check in question was ever charged to the account of F. Levine at the People’s Guaranty State Bank. The evidence does show that appellant’s son cashed the check at the Citizens’ National Bank, As we understand the evidence, F. Levine sometimes made mistakes in drawing checks, confusing the banks upon which he intended to draw them. It is not made plain from the record whether these checks were charged to his account at the bank at which presented or were held for collection against the other bank. We do not know from the record in this case whether, even conceding a partial control to I. Levine of the funds in. the People’s Guaranty State Bank, that this check was ever charged to that account, but may have been charged to the account of F. Levine at the Citizens’ National Bank, of which funds there is not even a contention that I. Levine had any supervision whatever.

Several special charges were requested' relative to the issue just discussed, calling for the jury to determine from the evidence whether I. Levine had such management and control over the funds in the People’s Guaranty State Bank as would support the alie-gation of ownership in him. All were refused. In this the trial judge was in error. The issue was fairly made by the evidence and ought to have been submitted to the jury for their determination.

It appears by one bill of exception that I. Levine had failed to testify to sonfe facts upon this trial beneficial to the state, to which he had testified on a former trial. The court’s qualification to the bill would lead us to believe that the trial judge thought the witness had undergone a “change of heart” with reference to the transaction, and the qualification, instead of aiding the state, rather intensified the error. A portion of the testimony of I. Levine at a former time was introduced in the instant trial over objections'urged, first, that no predicate had been laid therefor; and second, even if such had been done, that the state had no right under the guise of impeachment to supply testimony whiqh the witness had simply failed to give. In so far as the testimony on the former trial would supply any hiatus in the witness’ testimony in the instant investigation, the admission thereof was erroneous. That a party m'ay impeach his own witness, where he states an affirmative injurious fact which comes in the nature of a surprise, is well settled. Ross v. State (Tex. Cr. App.) 45 S. W. 808; Finley v. State (Tex. Cr. App.) 47 S. W. 1015. But it is equally true that if the witness merely fails to testify to facts expected to be elicited, the party offering him cannot, under the guise of impeachment, supply the evidence from a third party, or get before the jury statements that are otherwise inadmissible. See Bryan v. State, 90 Tex. Cr. R. 175, 234 S. W. 83, and many authorities cited therein.

For the reasons given, it becomes the duty of this court to reverse the judgment, and remand the case for a new trial.  