The only two questions raised or urged by appellant when this cause was submitted are stated, discussed and correctly decided against him in the original opinion. In that opinion the testimony of some of the witnesses on some points is quoted. Where this is done the quotations are from the record and are correct in every particular. That opinion, also, in some instances, states what the evidence established without particularly quoting the testimony of various witnesses so establishing. Wherever this is done, the evidence was clearly sufficient to so establish.
In his motion for rehearing he, for the first time, contends that there is no testimony which shows that he ever drew out of the bank in small checks all of the money of Mrs. Field which he had collected for her and deposited in his own name; and that there is no testimony which shows that he ever drew out any part of said money; and he contends that from this record the court can not tell but what the entire amount is today in the bank where he originally deposited it, and that the State must show that he did check out at least more than $50 of that money at one given time in order to show that he is guilty of felony embezzlement. And he now specially complains of this sentence in said opinion: "Between the dates of January 30th and February 27 the appellant drew out of the Archer City bank all of said money on various small checks — some of them were perhaps later than February 27th." This sentence was not stated as being specifically sworn to by any witness nor can it be so construed. It is a conclusion deduced from the testimony which was clearly sufficient to show it. But whether he drew out said money on small checks or not was immaterial, as will be herein shown.
Mr. Helm, one of the makers of said $373.75 note, swore he paid that note and $197.10, the interest on all of them due February 1st, to appellant by his check for $570.85 payable to appellant, dated January 27th. The banker, Mr. Power, swore appellant endorsed his name on that check. Appellant was particular to prove by him that he, appellant, on January 30th, deposited that check and thereby the money called for by it, $570.85, in the bank at Archer City to his, appellant's, credit. The check, with its endorsements, was identified and introduced in evidence. It is copied in the record. Appellant also had the banker *Page 175 identify the bank deposit slip to him for $612.85, showing it included said deposit of $570.85 to his credit on January 30th. There is no possible doubt, from the undisputed testimony, that appellant collected said $570.85 for Mrs. Field and placed it to his own credit in said bank on January 30th, and that he has never at any time or way remitted any of it to Mrs. Field or Mr. Gillespie for her. Mrs. Field swore: "I have never received from J.D. Powell, or any other person, one cent of the principal of this note for $373.75. . . . J.D. Powell, the defendant here, received and kept and embezzled that money without my consent or my knowledge." Mr. Gillespie, Mrs. Field's general agent, swore he sent said note and a receipt for said interest to appellant for collection and remittance to him for Mrs. Field, just a short time before it became due. He swore: "He (appellant) has never at any time remitted to me the principal sum on this note of $373.75." That he received a letter from appellant dated February 17, 1915, in which he wrote: "Your favor of February 15th to hand and I beg to enclose you check for $197.10 covering interest on the Field notes and beg to say that the principal will be met in a short while. Everything in this part is looking a little bit more favorable, but it will take another year for our people to recover fully." This letter was proven up and introduced in evidence. It is copied in the record. Mr. Gillespie further swore that soon after he learned of the collection of said note, and had received said letter, "I have made (in writing) quite a number of demands on J.D. Powell for remittance of this $373.75." That he went to Archer City twice in October, 1916, to see him about the matter, but Powell was not there and he did not then see him. Upon said repeated written demands by Gillespie, he swore, appellant wrote him letters. He produced and identified three, each addressed to Gillespie, signed by Powell and from Archer City. One dated March 9, 1915, another March 12, and another March 27th. They were introduced in evidence and copied in the record. The one of the 9th was: "Money that I was expecting to arrive by today's mail did not, but as the trains have changed schedule, expect it in tomorrow, hence will be a day or two late in reaching you." The one of the 12th was: "Your favor to hand and I beg to say in reply that you know it is very humiliating not to be able to send this Field matter as you suggest, but I assure you that this was caused by no crookedness of mine, but was done by the bank taking up note that was due, from my deposits, when it was my intention to let it run for thirty days by renewal. However, I will have this money in your hands in a few days and hope that you will just rest easy for a very short time, for I intended to have it by the 10th and when the papers came it was necessary to return them to Ky. for correction, but I will have it in a few days, so please for my sake, be easy on me." The one of the 27th was: "You will confer a lasting favor on me and one that I will not only appreciate but that I will gladly reimburse you for, to wait a few days longer on me. I have deal closed by which I *Page 176 will get money but the delay has been for a correction called for in title. Please do this, will oblige, yours truly."
Gillespie swore he went to Archer City again on April 3rd, 1917, saw and talked to appellant about the matter, and at the time "he (appellant) practically in every sense of the word, acknowledged to me that he had collected the principal of this $373.75 note and he made an offer of adjustment." Mr. Gillespie further swore that even up to the very time he was testifying in this case (on May 30, 1917), "he (appellant) has never reached me or sent me any money yet that he collected on this $373.75 note."
Appellant's statement in said letter of March 12th, to the effect that the reason he had not remitted the $373.75 which he had collected and deposited in said bank to his own credit, "was done by the bank taking up note that was due from my deposits," etc., was false, for said banker testified: "Between January 30th, the date of this deposit, and March 12th, the date of this letter, I did not charge off any note of J.D. Powell's that he owed us, out of the deposit that he had made of this Staff (S.G.) Helm's check." . . . And further, this banker testified: "On that date (January 30th) or within a few days subsequent thereto, I did not charge off any note that I know of of J.D. Powell, as against this money that he had deposited with this (Helm) check in question. His ledger account here does not show it; it shows that the charges against the account are small items down until the 27th of February, and subsequent to this date of January 30th. Yes, the account shows small checks given against the account." Again he swore: "The record of the individual ledger that I have here shows that J.D. Powell gave checks against his account, charges of small amounts, on down to February 27th, anddown further than that also."
All this testimony, without any sort of doubt, justifies the conclusion and deduction stated and quoted above in the original opinion of which complaint is specially made. In fact, such conclusion is not only reasonable, but is the only reasonable conclusion or deduction that could be drawn therefrom and is undoubtedly true.
But whether he drew out said money at the time and in the manner stated, or not, would make no difference. Under the law and the unquestioned facts he was undoubtedly guilty of embezzling said $373.75 of Mrs. Field's, as will now be further shown.
This court, in many cases, has held the "correct legal principle" on this point as stated for the court by Judge Henderson in Evans v. State, 40 Tex.Crim. Rep., as follows: "We hold this to be a correct legal principle, applicable to this character of case: that when the State has shown by competent evidence the receipt of money or other property by the carier, to be carried and disposed of in a particular way, and the State shows that it was not delivered and disposed of in the way and manner as agreed upon, and this is established beyond a reasonable doubt, if the party intrusted with the property has made some other disposition of the property, not criminal, to *Page 177 relieve himself of conversion he must introduce proof of such disposition. Penal Code, art. 52; Bridgers v. State, 8 Texas Crim. App., 145. We would further observe in this connection that if appellant made other disposition of the property, as sending the latter by mail, without registration, to the sendee, as suggested by counsel, this proof was peculiarly within his knowledge. Caldwell v. State, 5 Tex. 18; Ashcroft v. State,32 Tex. 109; Leonard v. State, 7 Texas Crim. App., 417. Indeed, under the facts of this case, if he sent the money to Mahoney in Mississippi it was not legally possible for the State to produce said witness at the trial, nor use his deposition. Appellant, however, was authorized to take the deposition of said witness, and prove the fact of the delivery of said letter and money. Appellant, however, appears, from his own statement made to Miss Stanley, to have cut himself off from this defense, because, when confronted by her, he told her that he had the receipt for the registered letter, but did not have it with him. We are not here talking about a prima facie case, but we are discussing the question of defendant's guilt as proved beyond a reasonable doubt, and we hold that the record authorized the jury to find that the State had made a plenary case in this regard."
In that case Miss Stanley delivered to Evans a letter containing $50 addressed to Mr. Mahoney in Mississippi, to whom she was indebted, which letter he agreed to register in the postoffice at Waco and take her the receipt therefor. She did not know whether Mahoney received the $50 or not. She did not know whether Evans sent the letter through the ordinary mail or by express. He did not register the letter. The State therein made no proof that he spent the money or made any other disposition thereof.
In Riley v. State, 32 Tex. 764, the State proved that McKeever and Van Slyke, doing an express business, in the name of the Phoenix Express Company, delivered $10,000 in money to Riley, their agent or messenger, to be transported by him from Galveston to Bryan and to be there delivered by him to Adams Hearn. But the State did not prove what he did with the money, except that he did not deliver it to Adams Hearn. The court held: "The reception of the money as agent or messenger of the Phoenix Express Company, or to the co-partnership of McKeever Van Slyke, and the failure to give even a feasible account of the money of his employers which had been intrusted to his care, raise a presumption in law for its misapplication, or appropriation to his own use. And unless he could counteract this presumption by satisfactory explanations, or by facts and circumstances sufficient to create a reasonable doubt of his guilt, the jury would be warranted in finding a verdict against him upon a charge of embezzlement."
The law is correctly laid down by Mr. Branch in his 2 Ann. P.C., p. 1415, as follows: "A conviction for embezzlement will be sustained where defendant was intrusted with money or property to be disposed of in a particular way and the proof shows he did not do that, *Page 178 and defendant fails to show an honest disposition thereof. Riley v. State, 32 Tex. 764; Bridgers v. State, 8 Texas Crim. App., 145; Evans v. State, 40 Tex.Crim. Rep.; Hamer v. State,60 Tex. Crim. 341."
To the same effect see Bridgers v. State, 8 Texas Crim. App., 145; Jackson v. State, 44 Tex.Crim. Rep.; Stephens v. State, 49 Tex.Crim. Rep.; Schweir v. State, 50 Tex. Crim. 119; Garner v. State, 51 Tex.Crim. Rep..
Appellant's contention that the State must prove he checked out of said deposit he made, at least more than $50 at one time, in order to show he was guilty of felony embezzlement, has been expressly and repeatedly held against him by this court. See Hamer v. State, 60 Tex.Crim. Rep., an opinion of this court by Judge McCord; Taylor v. State, 29 Texas Crim. App., 466, an opinion of the court by Judge Davidson; Lawshe v. State,57 Tex. Crim. 32, an opinion of the court by Judge Ramsey.
In the Hamer case Judge McCord, in the original opinion, stated Hamer's contention as follows:
Appellant seeks a reversal, "because the proof disclosed that on the date alleged in the bill of indictment, when the embezzlement occurred, the defendant embezzled less than $50 in value, and, therefore, the court should have directed the jury if they found the property to be of a less value than $50 that defendant would only be guilty of a misdemeanor, or to state it in another way, that if money is placed in the hands of an agent to be handled for his principal and that he used that money at different times, that each appropriation would constitute a separate offense, and for that reason if at any time he appropriated an amount less than $50 that defendant could not be convicted of a felony."
On this point the court, speaking through Judge McCord, held: "On the trial of the case appellant offered his account with the bank where he kept Miss Lewis' money deposited. The account simply stated `J.P. Hamer, trustee.' He offered the account in evidence and it showed that on the 13th day of December, the date alleged in the bill of indictment as to when the appropriation occurred, that he drew out of the bank $17.25 in one check, and $25 in the other. The contention is made that the bill of indictment alleging the offense to have occurred on that date, and the account only showing that he drew out of the bank $42, that this was a separate and distinct offense, and being a misdemeanor, the court should have directed the jury that they would find defendant guilty of petit theft, and that the State was not permitted to show any other date than the 13th, because each withdrawal was a separate and distinct appropriation. We can not give our sanction to this theory. The money having been deposited by defendant in the bank, he had authority to withdraw the money, and the mere act of withdrawal could not of itself be construed into an appropriation. Suppose that defendant deposited $2000 in the bank on the 15th of October. Suppose on the next day he declares an appropriation *Page 179 in his mind, then because he may have drawn it out by dribbles, could it be said that each withdrawal was a separate offense? Or suppose that he had the $2000 in his pocket, and determined to appropriate it, and he walked out of his office and went upon the street, and spent five or ten dollars today, fifteen tomorrow, and twenty-five the next day, would each be a single appropriation? We think the position is wholly untenable. The offense of embezzlement is constituted by the fraudulent misapplication or conversion to his own use without the consent of his principal or employer any money or property of such principal or employer which may have come into his possession or be under his care by virtue of his office, agency or employment. See article 938, Penal Code. A question similar to this came before this court in the case of Taylor v. State, 29 Texas Crim. App., 466, and the proposition contended for by appellant here was held adversely to his contention in that case. Judge Davidson, speaking for the court, says: `Appellant urges that the facts raised the issue upon which the court should have charged the misdemeanor phase of the law of embezzlement, and that if embezzlement was proved at all it was not shown that as much as twenty dollars was converted at any one time. To this we must withhold our assent. We do not think the evidence raises this issue. The facts show that appellant obtained as agent large sums of money of his employer and converted same to his own use.' So, in this case the proof discloses that appellant received $2050. This money came into his hands on the 15th of November, 1902. One month thereafter, or on the 17th day of December, 1902, he forged a note to cover $2050 and attempted to make Miss Lewis believe that this note was genuine and that he had loaned her money was the day that the offense was alleged to have been committed. But let us look at it differently. Defendant's account at the bank shows that on October 15, the very day that this money was placed in the bank, he drew out $50; on the 16th, $100; on the 18th, $136; on the 23rd, $65; on the 29th, $60; on November 6, $61; on the 7th, $73. If it may be charged that each withdrawal of the money from the bank was a separate offense, still the fact that the defendant showed on the day alleged in the indictment he did not commit a felony, the State would be permitted to go behind that date and show that he had committed a felony at some time within the period of limitation, and the State was not limited to the day alleged in the indictment. But it is contended by appellant if the offense committed on the day alleged in the bill of indictment was a separate and distinct offense, and the State, having so proved this matter, was precluded from inquiring into other offenses, and he gives as an illustration that if a party steals several horses from different persons at different times, that you could not offer the proof of the theft of a horse from B when you had alleged the theft of a horse from A on the date fixed in the indictment. We do not think counsel is happy in his illustration. Each is a separate and distinct offense. Here it is not the withdrawal of the money in dribbles that makes the offense It is the appropriation of the money, *Page 180 and whenever the defendant appropriated it his offense was complete, and the State's case can not be successfully met by proof that after he had appropriated the money he scattered it out in small amounts and then claim that these small amounts would constitute separate offenses."
On rehearing, appellant contended that the offense was barred by limitation. On this question, as well as applicable to appellant's contention above stated, the court through Judge McCord further held: "Appellant has filed a motion for rehearing and asks that the affirmance be set aside and that the case be reversed and remanded because the facts in the case show that if there was any embezzlement in this case the same was barred by the statute of limitation. The indictment in this case was returned against appellant on the 28th day of October, A.D. 1905. It charges the offense to have occurred on the 13th day of December, 1902, and alleges the embezzlement of $2050. The proof showed that Miss Emily Lewis had the defendant to act as her agent and attorney, and that on October 15, 1902, she turned over to the defendant $2000 to handle and invest for her as her agent. About a year after she let the defendant have this money the demand was made on him for the same and he claimed that he had loaned this money on December 13, 1902, to a man by the name of John Ward, and exhibited a note for that amount, covered by a mortgage on real property. It was discovered that this note was a forgery and no such man existed and no such property was in existence as was described in the mortgage. The State, after proving the delivery of the $2000 and $60 to the defendant, proved the agency, the time of the delivery of the money, the demand was made on the defendant, his representation that he had loaned the money and the falsity of this loan. The defendant then offered testimony of the deposit of this money in the bank by him and that on the same day that he had drawn out the sum of $540 and that at separate times from that day he had drawn out various sums from $15 up to $150. He makes the contention before this court that the act of embezzlement was complete when he drew out the $540 on the day the money was deposited in the bank and that this completed the offense on that date, and that the same was barred by limitation. We have not been cited to any authority, nor have we been able to find any authority that holds that where a lump sum of money is in the hands of an agent and he uses that money for his own purposes and draws it out, or appropriates it at different times and in different amounts that each withdrawal or appropriation of the sum will constitute a separate offense; or that the intent would be fixed by his use of the money. This would simply be evidence of the appropriation of the money and the transactions would simply be continuous in their character. The statute makes it embezzlement to misapply, convert and appropriate money or property that may have come into the hands of a person as agent or attorney, or trustee, with a fraudulent intent to deprive the owner of the value of the same. This intent is gathered from the various and sundry acts that go to make up the complete conversions or misapplications which may be continuous in their character, and to *Page 181 hold that each withdrawal from the bank would constitute a separate offense, would be splitting up the transaction and making various and sundry offenses out of one criminal intent. Intent is incapable of direct proof. Therefore, great latitude is necessarily allowed in proving this element of the offense. Broadly speaking, any evidence is admissible which has a tendency, even the slightest, to establish fraudulent intent on the one hand, or on the other hand to show the bona fides of the accused. See Cyc., vol. 15, 529. As said by Judge Clark in the case of Leonard v. State, 7 Texas Crim. App., 417: `What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted. There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading.' The charge in this case is the embezzlement of $2050, belonging to Miss Emily Lewis, which had been intrusted to the defendant's hands. He had authority to draw this money out of the bank — all at once, or at different times. This act of withdrawal would not be a crime within itself, nor would the several withdrawals constitute different offenses. The first evidence that the State produced in this case of any act of fraudulent appropriation on the part of defendant was on the 17th day of December, 1902, when, for the first time, he makes a note purporting to be the act of one Ward for this money, and in order to deceive Miss Lewis he paid interest on that note for a year. We are constrained to hold that the act of embezzlement in this case took place on the day when he attempted to manufacture testimony to cover up the money that had been intrusted to him by Miss Lewis, and that the different acts of withdrawal of the money from the bank were but continuous acts of his that might be circumstances to develop the criminal intent. When was the criminal intent formed in this case, according to the testimony? Was it when this money was withdrawn from the bank? We do not know. But the State has fixed it as on the 17th day of December, 1902, when he attempted to conceal from Miss Lewis the whereabouts of this money which she had intrusted to him. In the Lawshe case, reported in 57 Tex.Crim. Rep., 121 S.W. Rep., 865, this court held that where the employment and all the transactions were continuous and the proof raised no issue of an embezzlement of less than $50, it was sufficient to charge the jury that the accused could be convicted of felony if the sum embezzled was in excess of $50 without also charging that before the jury could convict the proof must show an embezzlement at one time of a sum exceeding $50. In the Lawshe case he was agent of the Missouri, Kansas Texas Railway Company at Sealy, and was agent for the American Express Company, and his duties intrusted him with moneys belonging to these different companies, and he was charged with the embezzlement of moneys belonging to the companies. In this case it was shown that he appropriated money at different times and the court gave them a general charge that *Page 182 if he was agent of the Missouri, Kansas Texas Railway Company, and had in his possession as their agent moneys belonging to them, and that he embezzled and fraudulently misapplied the same of the value of $50 or over they would convict. It was objected in that case that the court erred in not charging the jury that before they could convict, the proof must show an embezzlement at one time of a sum exceeding $50. This court held that it was not necessary for the court to have so charged. This court says: `Under the evidence appellant was entitled to receive the money, and it is for its fraudulent appropriation when so received by virtue of his agency that he is amenable to law. The testimony shows that the receipts of the office ran from $1200 to $1800 per month. The aggregate shortage is shown to be a sum largely in excess of $500. The employment and all the transactions were continuous, nor was the issue of an embezzlement of less than $50 raised.' The right of the defendant in this case was continuous to draw the money out of the bank at any time and in any amounts he saw fit, and it can not be said that each withdrawal constitutes an offense and that the fraudulent intent relates to the first withdrawal alone."
The Taylor and Lawshe cases and the holding of the court therein are so fully stated by Judge McCord it is unnecessary to further state or discuss them.
The substance and effect of all the testimony clearly established that shortly after appellant deposited said money in the bank he drew all of it out; and his contention, that it can not be told from the record "but that the entire amount is today in the bank, where he originally deposited it," is certainly not true, but the reverse is true.
He collected the principal, $373.75, and the interest, $197.10, as one collection and deposited the whole in the bank as one deposit, on January 30th. His instructions, contract and duty was to remit both at once and at the same time. He then remitted nothing. Mr. Gillespie doubtless found out he had made the collection, and on February 15th wrote to him, doubtless demanding that he remit the money. On February 17th appellant answered Gillespie and sent him a check for the interest only, writing, "I beg to enclose you check for $197.10, covering interest on Field notes, and beg to say that the principal willbe met in a short while." This was in effect a denial that he had collected the principal, or an indirect admission that he had then appropriated it for some purpose of his own. In either contingency, or both, it was strong testimony that he had then spent or appropriated, and embezzled the principal. Gillespie again, in writing, demanded the money, and on March 9th appellant, in answer wrote to him, "Money I was expecting to arrive by today's mail did not. . . . Expect it tomorrow, hence will be a day or two late in reaching you." This was also to the same effect as his letter of February 17 that he had already appropriated and embezzled the principal. Doubtless right away Gillespie, in writing again, demanded he should send him the principal. Appellant answered that demand on March 12, saying: "Your favor *Page 183 to hand. . . . You know it is very humiliating not to be able to send this Field matter," . . . but his not doing so was caused "by the bank taking up (my) note that was due, from my deposits, and stating, "I will have it in a few days, so please for my sake, be easy on me." This statement by him that the bank had taken out of his said deposit a note he was due the bank, wasfalse, as so testified by the banker. This letter is the strongest kind of testimony by appellant himself to the effect that he then had no money of said deposit in the bank, but had then drawn it all out, and his said false statement was the strongest kind of evidence showing his appropriation and embezzlement of said $373.75. And again, his last letter of March 27th begging for more time to remit said money, saying therein, "You will confer a lasting favor on me, and one that I will not only appreciate, but I will gladly reimburse you for, to wait a few days longer on me," therein, as he had done in a previous letter which must have also been false, that he had made another deal whereby he would get the money and then pay the $373.75.
In the face of this testimony, and much other showing he had drawn all that money out of the bank, it is perfectly preposterous to claim that that $373.75 which he had deposited in the bank on January 30 is still now in said bank to his credit.
Under the law and the facts there can be no sort of doubt of appellant's guilt, and the jury so found — couldn't legally have found otherwise.
Motion overruled. Overruled.