
    MESSNER v. STATE.
    (No. 3875.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Criminal Law <&wkey;433 — Embezzlement— DOCUMENTARY EVIDENCE — LETTERS.
    Where, in a prosecution for embezzling money sent defendant to pay the amount due the state to get a patent to public school land purchased by the sender and defendant’s charges- and expenses in connection therewith, it appeared that the sender’s correspondence to defendant relative to the money consisted of letters written by a bank cashier for him, defendant’s replies to these letters, wherein he acknowledged receipt of the money and agreed to apply it as directed, were properly admitted in evidence, where there was evidence authenticating defendant’s signature to them.
    [Ed. Note. — For other eases, see Criminal Law, Cent. Dig. § 1022; Dec. Dig. t&wkey;433.]
    2. Criminal Law <&wkey;1169 — Harmless Error-Evidence.
    In a prosecution for embezzling money sent defendant to use in getting a patent to school land, the admission of evidence that a third person had written defendant to get certain school land patented, if error, was harmless, where defendant’s letters introduced in evidence showed that he had agreed to get the land patented.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 754, 3088, 3130, 3137-3143;. Dec. Dig. <&wkey;1169.]
    3. Indictment and Ineormation <@=5132 — Election — Submission to Jury.
    Where an indictment contained two counts, one charging embezzlement of a check and the other embezzlement of the money represented by the check, both counts being based on the same transaction, the court properly refused to require the prosecution to elect on which count to ask for a conviction, and did not err in submitting both counts to the jury.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 425-447, 449— 453; Dec. Dig. &wkey;132.]
    4. Criminal Law <&wkey;8Í4 — Instructions — Evidence — Return oe Money.
    Where, in a prosecution for embezzlement, there -was no evidence that defendant returned the money, the court'properly refused to instruct on that issue.
    [Ed. Note. — For other cases, see .Criminal Law, Cent. Dig. §§ 1821, 1833, 1839, 1860, 1865, 1883, 1890, 1924, 1979-1985, 1987; Dec. Dig.. @=>814.]
    5. Embezzlement &wkey;>47 — Peremptory Instructions — Evidence.
    Where, in a prosecution for embezzling money, the evidence showed that defendant had’ agreed to use the money as agent to secure a patent for school land, and that he received the-money, deposited it to his credit, checked it out in small quantities, and made no. attempt to secure the patent, the court properly refused peremptory instructions for defendant.
    [Ed. Note. — For other eases, see Embezzlement, Dec. Dig. &wkey;>47.]
    
      Appeal from District Court, Hartley County; R. C. Joiner, Judge.
    W. S. Messner was convicted of embezzlement, and appeals.
    Affirmed.
    Reeder & Dooley, of Amarillo, for appellant. C. 0. McDonald, Asst Atty. Gen., for tbe State.
   HARPER, J.

Appellant was convicted of embezzlement, and bis punishment assessed at two years’ confinement in tbe penitentiary.

Tbe evidence would show that P. C. Madson lived near Sheffield, Ill., and that be bad purchased section 6, block A-7, public school land, and there was a balance due tbe state on tbe purchase price of about $900, which must be paid before a patent could be obtained for tbe land; that Mad-son was desirous of having tbe land patented, and bad tbe cashier of tbe Sheffield Bank, C. W. Boyden, to send to appellant a draft for $950 to pay appellant’s charges and expenses, and to pay tbe remainder due tbe state to get a patent to tbe land. Tbe evidence shows appellant received this draft and deposited it at tbe First State Bank of Channing, having it credited to bis account in tbe name of W. S. Messner, guardian; that be appropriated this money to bis own use, and did not pay tbe balance due tbe state, nor any part thereof, and made no effort to have tbe land patented. Tbe evidence shows that Mr. Madson bad tbe bank cashier do all tbe writing to appellant, and appellant’s letters were addressed to,tbe bank cashier, Mr. Boyden. Appellant objected to tbe introduction of some four letters alleged to have been written by him to Mr. Boyden. Tbe first letter states:

“I am in receipt of papers from Judge D. B. Hill, in re to that part of section 6, block A-7, public free school land, in Dallam county, Texas, owned by Mr. Peter C. Madson. * * * This land was sold at $2 an acre, I presume; hence the amount due on it is $897 for the 460 acres, or $898.56 for the 460.8 acres. The fees in the land office, if it has to be patented separately, will be about *$17, and it will have to be resurveyed, which will be an additional expense; but I will cut that out, and also one patent fee, by getting a straight deed from Clifton Egerton direct to Mr. Madson, covering the whole survey, and if I can succeed in doing this, which I think I can, it will cut the land office fee down to about $10, and my fee will be about $20, and in this case the surveyor’s fee will be entirely cut out. I will do the work, however, in the cheapest possible way that will be consistent with getting it absolutely correct in all things. Tou may remit $950 in any Eastern exchange, which X can use here and will be at no expense for exchange, and I will procure Austin exchange here. I am certain that this amount will cover, and probably will be a little more than enough. I write you thus fully in regai-d to the matter that Mr. Madson may' fully understand the situation, and by to-morrow I will have a complete abstract of the land before me and will get it in shape as rapidly as possible. Very truly yours,
“[Signed] W. S. Messner.”

Tbe next letter, among other things, states:

“I am in receipt of yours of 29th, with inelo-sure of draft for $950, and will advise you if' any hitch arises in patenting the land, which I do not anticipate,” etc.

The other two letters are directly relevant to tbe transaction, and all are admissible, if properly proven up. Mr. Madson testifies that Mr. Boyden received these letters at Sheffield, Ill., and be read them to him; that be and Mr. Boyden came to Texas together, and be was present when Mr. Boyden delivered tbe letters to tbe district attorney. Tbe letters are written upon letter beads bearing the following words:

“Hartley County Abstract Company, Incorporated. W. S. Messner, General Manager.”

Tbe letters are dated at Channing, Tex., and tbe banker at Channing, who testifies that appellant deposited tbe $950 draft in bis bank, also testifies that tbe signature to tbe letters—

“looks like W. S. Messner’s signature. I was familiar with his signature several years ago. In my opinion that is his signature.”

Tbe draft that was deposited was also indorsed “W. S. Messner.” There was no error in admitting these papers in evidence, and tbe bills complaining of their admissibility present no error. Tbe banker also testified that appellant checked tbe money out of tbe bank, and appropriated it. Commissioner of tbe Band Office J. T. Robison, testified:

“As Commissioner of the General Land Office I have charge and custody of the records and archives of that department. The balance of the purchase money due the state of Texas on section 6, block A-7, public free school land, Dallam county, Texas, was never sent to the land office by Mr. Messner or any one else. This land has never been patented. The defendant never did request a patent to that land, nor did he ever send the requisite amount of money or fees there to have it patented.”

Thus the evidence clearly shows that appellant received tbe money of Mr. Madson to have tbe land patented, made no effort to patent tbe land, and appropriated tbe money to bis own use. He did not testify in tbe case, nor seek to explain in any way why be did not make an effort to secure the patent for tbe land, nor what be did with tbe money after receiving it.

While Mr. Madson was testifying, he stated that Mr. Boyden did all tbe corresponding with Mr. Messner; that be would write for him; that be saw tbe letters, sealed in an envelope, and addressed to appellant at Channing; that they were then deposited in tbe box at tbe bank where all letters for mail were deposited; that be did not personally see the letters deposited in the post office. As none of these letters were introduced in evidence, nor tbe contents of them, the bills complaining of these matters present no error, unless it be the bill which states that tbe witness was permitted to testify that he had Mr. Boyden write to defendant to have the land patented; that Boyden had written appellant, “You get the land patented.” If there was no other evidence in the record that appellant contracted and agreed to get the land, patented, this bill would probably present error. The contents of the letters written by Boyden to appellant would perhaps not be admissible without a more specific showing that he received the letters, and a demand had been made on him to produce the letters on the trial, or secondary evidence of their contents would be introduced. But this statement, in the light of the statements contained in appellant’s letters, which were properly proven up and admitted in evidence, fenders the admission of the above testimony immaterial. In all of his letters he admits he had agreed to have the land patented. After writing as he did in the letters above copied, in other letters he writes:

“The patent may be a little slow in coming out of the land office, but that will be on account of waiting its turn. I have sent all necessary papers. I have gotten all necessary matters in shape to transfer the land and have the whole survey patented in one patent to Mr. Madson.”

Other similar statements are contained in appellant’s letters, and the isolated statement of Mr. Madson, above recited as being admitted in evidence, under such circumstances, presents no reversible error.

The indictment contained two counts— one charging embezzlement of the check, and the other charging embezzlement of the money. Both counts were based on the same transaction, and there was no error in refusing to require the prosecution to elect on which count they would ask for a conviction, nor in submitting both counts to the jury. Gonzales v. State, 12 Tex. App. 657; Green v. State, 21 Tex. App. 64, 17 S. W. 262; Morgan v. State, 31 Tex. Cr. R. 1, 18 S. W. 647.

There is no proof nor suggestion in the evidence that appellant returned the money; therefore there was no error in refusing the special charge on that issue. The evidence shows he received the money, deposited it to his credit, and checked it out in small quantities. The evidence sufficiently shows that appellant had agreed as agent to secure a patent for the land for Mr. Mad-son, and the court did not err in refusing the peremptory instructions requested. In one letter he says:

“I will do the work in the cheapest way possible that will be consistent with getting it absolutely correct in all things. Yon can remit $950 in Eastern exchange. I am certain that this amount will cover, and probably will be a little more than enough.” .

As the letters disclose there was a specific agreement on the part of appellant to obtain a patent for the land, there was no error in refusing special charges Nos. 3 and 4. His letters disclose he knew he was acting for and on behalf of Mr. Madson, and he was not acting for Boyden.

The charge of the court fully and fairly submits all thé issues in the case, and the judgment is affirmed. 
      @=5For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     