
    MILLER v. STATE.
    (No. 5849.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1920.
    Rehearing Denied Dec. 1, 1920.)
    1. indictment and information &wkey;sl 10(13), 120 —Indictment for embezzlement charging that accused was clerk or employee is sufficient.
    Under Vernon’s Ann. Pen. Code 1916, art. 1416, enumerating persons who may be guilty of embezzlement from a corporation as officer, agent, clerk, or attorney, an indictment charging that accused was a clerk or employee of a corporation is sufficient; the term employee being treated as surplusage.
    2. Embezzlement &wkey;>32 — Allegation held to show defendant’s fiduciary relationship.
    Allegation that the property embezzled came into defendant’s possession by virtue of his employment as clerk sufficiently charged a fiduciary relation and defendant’s duty to receive and care for the money.
    3. Criminal law <&wkey;370, 371(2) — Evidence of similar offenses admissible to show intent and knowledge.
    In a prosecution for embezzlement, evidence of other transactions of a similar nature is admissible to prove intent and guilty knowledge.
    On State’s Motion for Rehearing.
    4. Embezzlement &wkey;>35 — Variance between charge accused was “clerk” and proof he was “cashier.” ,
    A “cashier,” defined as a custodian of money of a bank, mercantile house, and the like, is not a “clerk,” who is defined as one to keep accounts or records, a higher assistant in an office, so that there is a variance between an indictment charging accused with embezzlement ■ of money, while clerk of a corporation, which charge must be construed under Vernon’s Ann. Pen. Code 1916, art. 10, by giving the ordinary meaning to the words, and proói that he was the cashier of the corporation, especially where the manager of the corporation expressly testified that he was not a clerk.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Cashier; Clerk.]
    5.Criminal law <&wkey;784( I) — Charge on circumstantial evidence necessary in prosecution for embezzlement.
    In a prosecution for embezzlement where there was direct evidence that accused received the money in his .official capacity, but his conversion thereof was only shown by inferences from the accounts kept by him, it was error to refuse a requested charge on the question of conviction on circumstantial evidence alone.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    E. L. Miller was convicted of embezzlement and his punishment fixed at two years’ confinement in the state penitentiary, and he appeals.
    Reversed and remanded.
    Chambers, Watson & Wilson, of San Antonio, for appellant.
    D. A. McAskill, Dist. Atty., and W. S. Anthony, Asst. Dist. Atty., both of San Antonio, and Alvin M. Owsley, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted, in the Thirty-Seventh district court of Bexar county, of the offense of embezzlement of property of the value of more than $50, and his punishment fixed at two years’ confinement in the state penitentiary.

Appellant urged various objections to the indictment in this case, none of which we think are sufficient. Article 1416, Vernon’s Penal Code, which names those persons who may be held guilty of embezzlement from a corporation, enumerates “any officer, agent, clerk or attorney at law or in fact.” The word “employee” is not used in this connection in the statute, and we infer that the trial court, in passing upon this motion to quash, held that the use of the word “employee” was surplusage where it occurred in said indictment. The accused was indicted for embezzlement, it being alleged that he was a clerk and employee of the Brown Cracker & Candy Company, a corporation.

The capacity in which the accused was acting for his employer, when the property came into his possession, in an embezzlement case, must be alleged in such manner as to bring it within the terms of the statute. In the instant case, the allegation that appellant was the clerk of the Brown Cracker & Candy Company, a corporation, is an allegation of a capacity named, and is therefore sufficient under the statute. Likewise, we think the further allegation in the indictment, that the* property of said corporation alleged to have been embezzled “came into the possession, and was then and there under the care of the said E. L. Miller by virtue of his sahj. employment and relation as * * * clerk * * * as aforesaid,” was a sufficient charging that a fiduciary relationship existed, and that it was appellant’s duty to receive and care for said money.

There are a great many errors complained of in the able brief filed by appellant’s counsel; but, in our view of the case, it is only necessary to notice some of the more important ones presented. A- careful examination of the statement of facts discloses that the manager of the Brown Cracker & Candy Company, at San Antonio, under whom appellant worked for a number of years, testified in so many words that appellant never did work for the Brown Cracker & Candy Company in the capacity of clerk. All the witnesses spoke of appellant as the cashier or bookkeeper. While a cashier might be included under the term “agent,” and in some instances might be an officer of a corporation, we are unable to find anywhere that he is classed as a “clerk.” The designation of appellant in the indictment as an “employee” having been eliminated as sur-plusage, and the evidence failing to support the allegation of “clerk,” there would seem to be a fatal variance between the proof offered and the allegations of the indictment. If one be charged as a “clerk,” and the proof entirely rebut the proposition that he was ever employed in such capacity, we have no alternative but to hold that the evidence and the proof do not correspond.

On the trial, much testimony was offered in behalf of the state, showing other transactions on the part of the appellant of like kind as the one charged in the instant case. This was objected to. We think there was no error in admitting proof of those transactions. By vigorous cross-examination of other employees of the said corporation, as to their access to the books, and their opportunity to get the money, the embezzlement of which is charged against appellant, their need of such property, the character and amount of their investments, etc., were brought out by appellant, manifestly to create .the impression upon the jury of the improbability of appellant’s connection with the appropriation of the property, and suggesting the appropriation thereof by such other employees. We think further that the very nature and character of the employment of the appellant, and of the circumstances surrounding the transaction and necessarily relied on by the state to make its proof of guilt, would make proof of other similar transactions admissible. Said corporation did a large business locally, and in its trade territory. Large sums of money, both cash and checks, came into appellant’s hands, and after proper entry, indorsement, etc., should have gone to the bank to the credit of said corporation. Appellant kept the books, and had charge of the moneys received, made out the deposit slips, kept the bank books, and except when an auditor came at intervals of some months, and checked the books, no one took actual oversight of the actions of appellant in the performance of his duties. In a business so conducted, one occupying a position such as appellant might easily mislay a check, or overlook an entry, or erroneously O. K. a miscalculated collection slip turned in by a driver, and thus be guilty of no wrong should an error be discovered; but proof of the continuation of such happenings might rebut any presumption of innocence as to one independent transaction. Again, when appellant left the employ of said corporation without any notice to them, he seems to have left the state. No charge had been made against him; no suspicion attached to him; no property of said company was found on him when arrested; and practically all the proof offered against him was the manipulation of the books, cash accounts, checks, etc., of which he had charge before leaving. In order to show intent or guilty knowledge, we think evidence of such other transactions was admissible, subject to proper instruction in the ' charge, as to the purpose of such testimony, and that, before the jury could consider any of said transactions as evidence, they must believe beyond a reasonable doubt that defendant’s guilt in such transactions was shown. See section 166, Branch’s Ann. P. C.; pages 622-623, Vernon’s C. C. P., for authorities; Fry v. State, 215 S. W. 560.

The state proved, over objection, the contents of two letters found in appellant’s trunk when arrested in California. Said letters were shown to be in appellant’s handwriting. They were neither dated, signed, nor addressed. Nothing in either referred to any of the facts of any transaction transpiring while appellant was employed by the Brown Cracker & Candy Company. Not a word in either of said letters, so far as we are able to see, related to any transaction under investigation. We think the letters were inadmissible.

An exception was taken to the court’s failure to charge on circumstantial evidence. We think such charge should have been given. No one saw this appellant appropriate this money. No confession or admission of his appears in the record to take the case out of the rule of circumstantial evidence. He had the lawful charge of money and property prior to his disappearance, and after he had gone, by the process of cheeking and auditing, it was discovered that shortages existed. The state claimed that appellant was the party responsible for these shortages. Appellant pleaded not guilty to the charge. The issue in the case then became the unlawful conversion by appellant of money belonging to bis principal, and to establish this conclusion tbe state introduced a number of facts, from wbicb tbe guilt of tbe accused might be inferred, but no positive proof thereof. If tbe main fact sought to be proved is a matter of inference, tbe case was one of circumstantial evidence under all tbe authorities. Ward v. State, 10 Tex. App. 293; Lee v. State, 14 Tex. App. 266; Mathews v. State, 17 Tex. App. 475; Fuller v. State, 24 Tex. App. 597, 7 S. W. 330; Pace v. State, 41 Tex. Cr. R. 208, 51 S. W. 953, 53 S. W. 689; Jones v. State, 54 Tex. Cr. R. 37, 111 S. W. 653; Stewart v. State, 71 Tex. Cr. R. 480, 160 S. W. 381.

This disposes of tbe material issues raised in this appeal. ,

For tbe errors mentioned, tbe. judgment will be reversed, and the cause remanded.

On State’s Motion for Rehearing.

Tbe state has filed its motion for rehearing.

We might have stated in our opinion on original presentation that the indictment herein contains seven counts, and that, appellant’s motion to require the state to elect upon which count it would proceed having been sustained, the prosecution proceeded upon only the seventh count; also, that in said count appellant was charged as the “clerk or employee of an incorporated company, etc.” This would have made dearer our statements and reasoning in said opinion.

The word “employee” not appearing in the statutory expression of who may commit embezzlement from a corporation, it would at once be evident that, the legal terms used in describing appellant’s attitude and relationship in the indictment being thus narrowed down to the allegation that he was a clerk, we would be held to the necessity of finding facts in testimony which showed him to be a clerk, else we would be forced to the conclusion of a variance between the indictment and the proof. The motion for rehearing insists that while appellant was known and designated by those who employed him, and who were associated with him in business, as a cashier, he was, notwithstanding, a clerk, and that the question for decision is, not what a man is called, but what he is. Appellant cites the Standard Dictionary, p. 352, wherein among other definitions of a “clerk,” appears the following:

“A person who is employed to keep accounts, or do writing; a hired assistant in an office, countinghouse, library or the like; colloquially in the United States made to include salesmen or shop assistants.”

However, the motion also cites page 292 of the same work, wherein “cashier” is defined as: .

“One who is a custodian of money, especially one who has charge of receipts, disbursements, cash on hand, and ordinary financial transactions of a bank or mercantile house or the like.”

The Century Dictionary defines a “clerk” as:

“(1) A clergyman or ecclesiastic. (2) A person who could read; a scholar. (3) A parish officer. (4) One employed to keep accounts or records; a scribe, an accountant; as the clerk of the crown; a town clerk. (5) An assistant in a shop or store.”.

The same work defines a “cashier” as:

“One who has charge of money; a cash keeper; the officer who has charge of the payments and receipts of money of a bank or mercantile company.”

It would seem from what we have thus said that there is a clear distinction between a cashier and a clerk, in the view of the lexicographers. Neither term is given as synonymous with the other, nor are the definitions such as that we might hold them equivalent terms. Bearing in mind then that, in the record before us, appellant is always spoken of as a “cashier,” and nowhere as a “clerk,” and that the man charged with the duty of employment in the establishment where he worked stated that he had never worked for them as a clerk, and having seen that the two positions are of different definitions and duties, as stated by the dictionaries, we turn to the legal authorities cited in the motion. 20 Corpus Juris, p. 440, is cited as upholding the proposition that “clerk” and “cashier” are interchangeable terms. The case of State v. Yeiter, 54 Kan. 277, 38 Pac. 320, is quoted as sustaining the text. Examining the Yeiter Case, it appears that he was prosecuted as the agent of the Bank of Ingalls, a firm composed of two men, and it was stated in the information that one Yeiter was employed by said firm as agent, and was designated as “cashier, etc.” The Kansas court held that Yeiter could not be convicted under that clause of their statute seemingly referred to in the pleadings, but quoted a statute forbidding embezzlement from a private person, under which it was held that if prosecuted he might be convicted; and, after quoting said statute, said court observed that the terms “clerk” and “servant,” as used in said statute, included a cashier. The statement was purely obiter dictum, but same refers to two Ohio decisions as its authority — Gravatt v. State, 25 Ohio St. 162, and State v. Kusnick, 45 Ohio St. 535, 15 N. E. 481, 4 Am. St. Rep. 564. Neither of these decisions in any way sustains the statement in the opinion of the Kansas Court referred to. In the Gravatt Case, it appeared that he was a sewing machine agent, selling machines and collecting for them upon a stipulated salary. The question was raised and decided affirmatively that he was a servant within the terms of the Ohio embezzlement statute. The term “cashier” was not mentioned in the record.

Kusnick was a partner in a private bank, in the other case mentioned, and the trial court instructed an acquittal upon the theory of partnership. The state excepted, and upon appeal the exception was sustained; but there is nothing in the case indicating that a clerk or cashier are interchangeable terms.

Citation is also made in the motion to other cases holding that where one is regularly employed in one capacity, but occasionally serves in another, he may be guilty of an embezzlement committed in the temporary employment. We find none of the citations applicable.

Article 10 of our Penal Code states that, unless otherwise specially defined, all words used in said Code are to be taken and construed in the sense in which they are understood in common language. The object of this is manifestly in order that persons charged with crime might know in well-understood terms what they were charged with. Without offense, we might assume that those associated with appellant in the instant case spoke our common language. Of the number of witnesses introduced by the state, not one of them understood appellant to be a clerk, or called him a clerk, but all of them spoke of him as a “cashier,” and, when asked the express question, the manager of the business said that he was not a clerk. The forbiddance of this statute is against any officer, agent, clerk, or attorney, and we see no reason why the language of the indictment might not follow that of the statute. That one is not a clerk is not equivalent to saying that he is not an agent or an officer. We might further observe that the books are full of cases in which there is no particular attempt to name the exact capacity in which the accused was employed, wherein indictments have been sustained because the . facts stated therein showed such relationship within the comprehension of the statute.

Objecting to our holding in regard to the letters found in appellant’s possession when arrested, the motion urges the admissibility of said letters, under authority of Thompson v. State, 35 Tex. Or. R. 523, 34 S. W. 629. In the Thompson Case, the effort of the state was to show that Thompson and one Whatley committed a joint robbery. Whatley was killed after the indictment was returned against him and Thompson, and a letter was found on his body, of unmistakable bearing on the case. The ruling by this court that said letter was properly admitted is the one referred to. We think the court in that ease correctly admitted said letter, but are unable to find any support in such holding for a contention that the letters in question were admissible. We have again examined said letters, in view of the insistence of the state, but'are unable to find anything in them referring even remotely to facts pertinent to this case.

It is contended further that we erred in holding this a case of circumstantial evidence. The state cites a line of authorities in homicide cases, holding that, when the fact of the killing is proven by positive testimony, that because the state, had to resort -to circumstances to prove the intent of the accused would not make it a case of circumstantial evidence. We are unable to see the relevancy of these citations. The factum probandum in embezzlement cases is the fraudulent conversion and appropriation of the property in question, and though it be established, by positive testimony that said property came into the possession of the accused, this would not relieve the case of being on circumstantial testimony, when the entire question as to whether or not said property was so converted as to make it embezzlement was one of deduction from the circumstances in evidence.

The motion will be overruled. 
      <§=»For other oases see same topic and KEY-N (JMBBR in all Key-Numbered Digests and Indexes
     