
    POPE v. STATE.
    (No. 3263.)
    (Court of Criminal Appeals of Texas.
    Oct. 21. 1914.)
    EMBEZZLEMENT (§ 11) — WHAT CONSTITUTES.
    Where accused, who was authorized to sign the name of the firm for which he worked, drew a cheek in the firm name and had a draft payable to his brother-in-law issued out of the proceeds, which draft accused used in payment of his own debt, signing the brother-in-law’s name to the draft, he was guilty of embezzlement of money, and not of the mere draft.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 9, 10; Dee. Dig. § 11.]
    Appeal from District Court, Potter County ; James N. Browning, Judge.
    D. W. Pope was convicted of embezzlement, and he appeals.
    Affirmed.
    Reeder & Dooley, of Amarillo, for appellant. Henry S. Bishop, Dist. Atty., and Crudgington & Works, all of Amarillo, and C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes.
    
   HARPER, J.

Appellant was convicted of embezzlement, and his punishment assessed at two years’ confinement in the state penitentiary.

Appellant was bookkeeper and cashier of the Nobles Grocery Company, at Amarillo, Tex., with authority to draw checks and sign the corporation’s name thereto in payment of any debts due by the corporation. He drew a check on the Amarillo Bank & Trust Company, payable to the First State Bank, for $312.60, signing Nobles Bros.’ name thereto, by D. W. Pope. He carried this check to the First State Bank, where there was a draft due by Nobles Bros, for $107.42, which he paid, and then had St. Louis exchange issued for the remainder, $205.18, payable to his (appellant’s) brother-in-law, H. W. Tolbert. This draft or exchange appellant used in paying a debt due by him to Walter Crossett, indorsing the exchange in Tolbert’s and bis own name. The $312.60 check was, of course, charged to Nobles Bros.’ account by the Bank & Trust Company, they having money to their credit in that institution.

These facts are in no way disputed in the record, but clearly proven beyond all doubt, appellant’s contention being that if he embezzled anything it was the draft or exchange, and not money as charged in the indictment, and present the questions from several different viewpoints. Had appellant had the exchange made payable to Nobles Grocery Company, and subsequently appropriated it, there might be some strength to his contention, unless it was clearly shown that it was his intention to make use of it for his own benefit at the time he secured it. But no such case is presented, but the intention to appropriate is made manifest when he had the exchange issued in his brother-in-law’s name; the appropriation took place in having it so issued, and it was with his employer’s money in the bank he secured this draft to be issued. So it was at that very time an appropriation to his own use and benefit of that much money when he had the bank to issue the draft or exchange. The appropriation took place when he delivered the check, with the request that the exchange.,be issued and delivered to him. The evidence that he subsequently indorsed the draft in his brother-in-law’s name, so that it would be payable to him, and he then indorsed it in his own name when he delivered it to his creditor, is but evidence -that he had that intention and did embezzle the money when he had the draft or exchange issued in the name of his brother-in-law. The court correctly held that it was the money he embezzled, and not the draft or exchange. The various steps taken by him were but steps in the one scheme to appropriate his employer’s money, which he, by the confidence placed in him, had under his control to the extent he used the money in the bank in the purchase of the exchange payable to his brother-in-law.

The judgment is affirmed.  