
    WRIGHT v. STATE.
    (No. 10470.)
    Court of Criminal Appeals of Texas.
    June 8, 1927.
    Rehearing Denied Oct. 12, 1927.
    1. Embezzlement &wkey;>l6 — Statutes defining “embezzlement” include bailments, where bailee has possession of personal property for benefit of bailor (Pen. Code 1925, art. 1534).
    Pen. Code 1925, art. 1584 (Pen. Code 1911, art. 1416), defining “embezzlement,” include such bailments where bailee has possession of personal property for benefit of bailor and not where it is held for benefit of bailee.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Embezzle —Embezzlement. ]
    2. Criminal law <&wkey;l09l (I I) — Where trial judge does not certify that questions and answers 'are necessary, bills of exception in that form cannot be considered (Code Cr. Proe. 1925, art; 760).
    Where bills of exception are in question and answer form, and there is no certificate of trial judge that such questions and answers are necessary in order to elucidate fact or question involved, Court of Civil Appeals is not authorized to consider same under Code Cr. ,Proc. 1925, art. 760.
    3. Embezzlement &wkey;>38 — In prosecution for embezzlement for appropriating part of employer’s check, where state relied on circumstantial evidence, check was admissible.
    In prosecution for embezzlement, in which defendant was charged with appropriating $1,-000 of $3,750 check to defendant’s employer, in which state relied on circumstantial evidence, check was admissible, since it was a circumstance tending to show that defendant appropriated $1,000, since facts showed that branch store issuing check 'was credited with $2,750, and there was no entry in books during that period of credit of $3,750.
    4. Witnesses &wkey;>255(7) — One who had audited books disclosing defendant’s shortage was properly permitted to testify from memoranda representing figures found on books present in courtroom.
    In prosecution of bookkeeper for 'embezzlement, in which defendant was charged, with appropriating pgrt of check from branch store of employer and crediting branch store with only part of cheek, one who had audited employer’s books which were present .in courtroom was properly permitted to testify from memoranda which represented figures found on books of employer, to effect that cash journal showed shortage in cash account of $1,000, since witness who knows that copies of original entries in books are correct may refresh his memory by memoranda made from original books.
    5. Criminal law&wkey;»406(3), 519(1) — Statements of accused, as confessions or admissions, made to witnesses while accused was not under arrest, held admissible.
    In prosecution for embezzlement, statements of accused to witnesses in nature of confessions or admissions of guilt, which were made while accused was not under arrest, held admissible against him.
    6. Embezzlement <&wkey;9 — In “embezzlement” cases, accused’s possession is rightful; it being his misuse of property that is criminal.
    In “embezzlement” cases, possession of accused is rightful, and it is his misuse of the property which is criminal.
    7. Criminal law <&wkey;400(6)— Permitting oral proof of corporate existence of owner of property claimed embezzled held not error as against contention charter was best evidence.
    Where accused was charged with embezzling money belonging to his employer, proof of corporate existence of employer by oral test!-' mony, held not error on ground that charter of company was best evidence, since existence of corporation was only collateral issue.
    On Motion for Rehearing.
    8. Embezzlement <&wkey;>l6 — Evidence that bookkeeper for corporation managed office, received money, and made deposits, showed that bookkeeper was bailee who could be guilty of embezzlement under statute (Pen. Code 1925, art. 1534).
    In embezzlement prosecution, in which accused bookkeeper was charged with appropriating part of check ,to his employer, a corporation, evidence that accused was manager of office, attended entirely to deposits in bank, kept bank accounts, received money that came into office, and made entries in books thereof, showed that accused was a bailee and embraced under terms of Pen. Code 1925, art. 1534, and as such could be guilty of embezzlement of funds which came into his hands, by virtue of his position.
    9. Embezzlement <&wkey;>48(4) — Evidence held to show that accused deposited part of amount of check claimed embezzled and kept balance.
    In prosecution of bookkeeper for embezzlement, in which accused was charged with appropriating to his own use part of cheek to his employer, evidence held not to show that accused deposited amount of check to employer’s credit but rather that he only deposited part of amount of cheek and kept the balance.
    Commissioners’ Decision.
    Appeal from District Court, Williamson County; Cooper Sansom, Judge.
    Raymond Wright was convicted of embezzlement by bailee, and he appeals.
    Affirmed.
    W. C. Wofford, of Taylor, and Wilcox & Graves, of Georgetown, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Lyles, Asst. State’s Atty., both of Austin, for the State.
   BETHEA, J.

The appellant was convicted of embezzlement by bailee, and his punishment assessed at two years in the penitentiary.

The state’s testimony shows that appellant was the bookkeeper for the Taylor Hardware Company, and was, as such bookkeeper,, in charge of the entire funds, accepting cash on sales tickets, receiving remittances, and attending to bank deposits, and keeping the bank account. He was charged with the duty of receiving the cash—the money which came into the office—and of making the deposits. In fact, he supervised the entire department. The Taylor Hardware Company was a corporation duly incorporated under the laws of the state of Tesas. The state proved that on September 15, 1924, the Granger branch of the Taylor Hardware Company sent a check to the Taylor house for $3,750 on a Granger bank; that this check was entered on the books of the Taylor Hardware Company at $2,750 instead of $3,750, the remaining $1,000 being the amount the state contended was embezzled by appellant. The appellant offered no evidence in the trial of his case.

It will be noted that the offense with which the appellant was charged was committed on September 16, 1924, and was denounced by the.law as laid down in the Statutes of 1911, Penal Code, art. 1416. The only difference between article 1416 and the new article (No. 1534, Revised Statutes of 1925, Penal Code) is the addition of the word “employee” after the words, “if any officer, agent, clerk.” The appellant earnestly contends, both in his oral argument and in an able brief filed with the record in this case, that, in an employment such as his was in this instance— ■that is, as a bookkeeper, with regularly recognized duties from day to day as a part of the routine of the business, with no special or certain contract of bailment from day to day, or from transaction to transaction— there was not and could not be a contract of bailment, nor did appellant’s dealings with such corporation represent either one or a series of contracts of bailment, but that he was the bookkeeper of said corporation and as such he was charged with certain duties, and his continuing employment represents a continuance of such duties from day to day, and at no time did appellant’s duties branch off until they became a contract of bailment to safely keep or properly deposit moneys belonging to said corporation to such an’ extent that he could be said to have obtained moneys coming to him as such bookkeeper by virtue of a contract of bailment.

The contention of appellant is raised by his exceptions and objections to the court’s charge, and by specially requested charges which were refused by the court, and also by a number of bills of exception.

We are unable to agree with the contention of appellant. The evidence in this case shows that a trust or fiduciary relation existed between the appellant and the Taylor Hardware Company, in that he was acting in the capacity of bookkeeper for the company, and that it was his duty to receive all remittances, handle all cash and sales tickets, deposit all moneys received by him for said Taylor Hardware Company, and keep a correct bank account. Our statutes defining embezzlement include such bailments where the bailee has possession of the personal property for the benefit of the bailor, and not where it is held for the benefit of the bailee. It has also been held by this court that, where there is a trust or fiduciary relation existing between the parties, the conversion by bailee constitutes embezzlement. The evidence in this case clearly shows such trust and fiduciary relation. Reed v. State, 16 Tex. App. 586; Malz v. State, 36 Tex. Cr. R. 447, 34 S. W. 267, 37 S. W. 748; Johnson v. State, 71 Tex. Cr. R. 206, 159 S. W. 849; Lee v. State, 81 Tex. Cr. R. 117, 193 S. W. 313.

Bills of exception Nos. 1, 2, and 4 are in question and answer form, and we find no certificate of the trial judge that such questions and answers are necessary in order to elucidate the fact or question involved. We are therefore not authorized to consider same. Article 760, C. C. P.; Long v. State, 105 Tex. C. R. 494, 288 S. W. 1074, and authorities therein cited.

Bill of exception No. 3 complains that, while the witness J. J. Brewster was testifying in behalf of the state, the state’s attorney offered in evidence a certain cheek for the sum of $3,750, executed by the Granger branch of the Taylor Hardware Company. We are not in accord with appellant’s contention that said cheek was not admissible. The state relied for a conviction on circumstantial evidence, and, under the facts of this case, the check was a circumstance tending to show that appellant misapplied and appropriated to his own use the $1,000 alleged in the indictment to have been embezzled, since the facts show that on the 16th of September the Granger branch of the Taylor Hardware Company was credited with $2,750, and that there is no entry in the cash book journal from the 15th to the 18th of September, inclusive, showing that there is a credit to the Granger house of $3,750.

Bill of exception No. 5 complains that the witness C. H. Johnson was permitted to testify for the state from memoranda he had in his hands at such time (which memoranda he had previously stated was a portion of his audit and represented figures found on the books of the Taylor Hardware Company), to the effect that the cash journal showed that certain cash was on hand on September 1, 1924; that certain cash had been put in during said month of September; that certain cash had been withdrawn during the month of September; and that said cash account showed same to have been short in the sum of $1,000. Appellant’s objection was that same was secondary evidence, and was a conclusion of the witness, and was testified ter from mem-oranda two degrees removed from the record testified about, and that the books were the best evidence of what they showed, and that the witness was not entitled to use the mem-oranda made by himself except for the purpose of refreshing his memory. We are unable to agree with appellant’s contention, for the reason that it has often been held by this court that a witness who knows that the copies of the original entries in the books are correct may refresh his memory by any mem-oranda that he has made from said original books, and, furthermore, the appellant had the right to cross-examine the witness for the purpose of testing the correctness of his testimony given from his memoranda; the books being present in the courtroom, to which appellant’s counsel had access. ; ■

Bills of exception Nos. 6, 7, and 8 complain of statements made to the witnesses Roy Tra'we'ek and J. J. Brewster, which statements were in the nature of confessions or admissions of guilt. We see no error in the admission of this testimony, there being nothing in the record to show that appellant was under arrest at the time he made said statements, the rule being that any statement made by the appellant while not under arrest is admissible against him and not for him.

Bill of exception No. 9 complains that the learned trial judge permitted the witness J. J. (Brewster to testify that the real name of the corporation was the Taylor Hardware Company. The appellant objected to this evidence because the charter of the company was the best evidence, and the testimony of the witness was secondary in character. This court is not in accord with appellant’s views as reflected in the bill. In theft cases “the possession is interfered with without the consent of the rightful possessor. In embezzlement [cases],' the possession is in the accused. His possession is rightful. It is his misuse of the property that is criminal.” Miller v. State, 92 Tex. Cr. R. 259, 242 S. W. 1040. As we view it, the name of the owner of the property alleged to have been embezzled is descriptive of the offense and is set out in the indictment for the enlightenment of the defendant, and the proof of the name of the owner, either by oral testimony, or by the introduction of the original charter, or a certified copy of the charter, could not in any way have injured the rights of appellant. The fact that the ■ money alleged to have been embezzled by' appellant was the property of the Taylor Hardware Company may be proved by the same kind of evidence necessary to prove ownership in a natural person. A different rule might apply if the existence of the corporation was an issue in the case. The existence of the Taylor Hardware Company as a corporation was not a real issue in the case, but was only collateral. It matters not whether it was a de facto or a de ■ jure corporation. Proof of its" corporate existence by oral tes- . timony was not error.

The remaining bills of exception found in the record complain of the refusal of special charges. We have read the main charge and the special charge given by the learned trial judge, and we find same ably protect the rights of the appellant. Furthermore, what we have said in disposing of appellant's exceptions and objections to the court’s main charge also disposes of the questions raised by the bills of exception complaining of the court’s refusal to give said special charges,

Finding no errors in the record, and the evidence being sufficient to support the verdict of the jury, the judgment of the trial court is affirmed.

PER CURIAM. The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

I/ATTIMORE, J.

In his motion for rehearing and oral argument, appellant contends that there can be no embezzlement from a corporation by a bookkeeper; also that appellant was not a bailee in this case, and there could not be a conviction under an inflictment charging embezzlement by bailee.

We are unable to perceive any reason why one who is a bookkeeper should ipso facto be held immune from liability for embezzlement when charged in an indictment simply as a bailee, under that part of article 1534, P. C., which provides generally for the punishment of “any consignee or bailee of mon-. ey or property,” etc., who fraudulently embezzles or converts same.

This court, in Fulcher v. State, 32 Tex. Cr. R. 624, 25 S. W. 625, seems to adopt as a sufficient definition of bailment in a case like this the following:

“A delivery of personal property to another for some purpose, upon a contract, expressed or implied, that such purpose shall be carried out.”

See, also, Reed v. State, 16 Tex. App. 589.

In Goodwyn v. State (Tex. Cr. App.) 64 S. W. 251, we upheld a conviction based upon an implied contract resting upon _facts of much less cogence than those in this record. We there said:

“Clearly, there was an implied obligation on his part to deliver the money to the county treasurer. Having failedNto so do, and having converted the money to his own use and benefit, we think appellant has violated the statute under which he was convicted.”

In Collins v. State, 92 Tex. Cr. R. 388, 244 S. W. 153, we said, in substance, that the delivery and acceptance of money to be paid to another sufficiently constitutes the acceptor the bailee of the deliverer. This would be especially true if the acceptor owed a duty to the deliverer and had any character of employment under the latter in the course of which he was called upon to deal with the money or property of the deliverer. In the instant case the testimony shows that appellant was charged with the entire results in the office of the Taylor Hardware Company, so far as handling the cash was concerned, was the manager of the office without any interference, attended entirely to the deposits in the bank, and kept the bank accounts, received the money that came into the office, received remittances that came by mail, made entries in the books thereof, and made the bank deposits. We think this testimony fully showed that appellant was a bailee and embraced under the terms of said statute, and as such could be guilty of embezzlement of the funds which came into his hands by virtue of his said position.

It is also urged that, if there was a sufficient implication of duty upon appellant to make him a bailee of the $3,750 check which came into his hands, when he deposited said check to the credit of his employer corporation, he had met his duty and was free from liability. Without discussing this abstract question, we observe that there is an entire lack of any showing that appellant ever deposited said amount to such credit, but, according to our view, on the contrary the record shows that he only deposited $2,750 of said amount, and kept the other $1,000. In his motion appellant states that the fact of such deposit by him is shown by. the check itself as exhibited in the statement of facts. Inspection of the check as same appears at the place indicated by appellant shows a cheek dated September 15, 1924, at Granger, for $3,750, payable to the Taylor Hardware Company or order, drawn on the Hirst National Bank of Granger. On the reverse side of said cheek, made with a rubber stamp, appears the words: “Pay to City. National' Bank, Taylor, Texas, or order. The Taylor Hardware Company.” In another place, also rubber stamped, is the inscription: “Pay to the order of any bank, banker, or trust company 88-185, September 16, 1924. Previous indorsements guaranteed. [Signed] City National Bank, Taylor, Texas.” There was also on the reverse side of said check a perforation as follows: “Paid 9-18-24.” We find nothing in any of these things upon either side of said check which has any bearing as showing that the entire $3,750 was deposited by appellant. The testimony in another place' specifically sets out that a cash book journal then before the witness reflected the bank deposits made by the Taylor Hardware Company on the date in question, and that in same .in the handwriting of appellant on September 16th there was an entry showing that the Granger branch of said , hardware company was credited with $2,750, and cash was charged with $2,750 on the same date. This same witness also testified that he had before him a book showing the deposits in the bank of said hardware company on September 16, 1924, and that same showed in the handwriting of appellant a deposit of $2,750 on said date. There is also the testimony of an auditor that the books of the Taylor Hardware Company showed a shortage at the close of business for September, 1924, of $1,000. . Appellant introduced no testimony to combat or contradict any of the above.

' We are unable to agree with any of the contentions made by appellant in his motion. We find nothing in the court’s charge subject to any of the exceptions made.

No error appearing, the motion for rehearing will be overruled. 
      <£n>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes
     