New v. State

Responding to the motion for rehearing filed by the State, we have again carefully reviewed the record to see if there be facts to support the conclusion that appellant acquired from Rasmussen (hereinafter referred to as R) any money, — as is charged in the indictment. We find in the record a resolution, agreed to by all the directors of the Dundee bank, and signed also by R, of date March 25, 1933, agreeing and directing that all the money then on hand in said bank should be paid out to depositors, paying in full all such depositors save two, one of whom was R, the amount of whose deposit, after receiving $1800 from the bank on the date of said resolution, was $4200, which by the terms of said agreement was to be paid out of collection to be made from assets and debts due to the bank, payments of such amount to be made to R each sixty days thereafter.

The assignment made to this appellant by R, embezzlement of which seems to form the basis of this offense, was dated April 26, 1933. Said assignment specified on its face that R sold appellant the deposit standing in the name of R on the books of said bank. Regarding same R swore as a witness as follows: "There wasn't any money in it because we could not get our money; we had to wait until payments came in before we would be able to get our money. * * * I told him I didn't believe he could get the money out of the bank because they did not have any."

Again, in another place R testified as follows: "At the time I made the trade with Mr. New, it was with the understanding that he was going to give me bonds in exchange, as I was giving up all claims to the debt the bank owed me."

The record further shows that on May 27, 1933, by written endorsement on the back of the assignment made to him by R, appellant sold to Allbright whatever claim he had to the *Page 34 $4200 deposit referred to in the face of said assignment. Allbright testified for the State as follows: "At the time I obtained this instrument from Mr. New, on the 27th day of May, I knew at that time there was no money in the bank, but I knew it would have to come in. It would have to come in later on the subscriptions that had been made by the person interested in the bank."

It thus appears that, more than a month after appellant acquired his assignment from R, no money had come into the bank to the credit of R's claim by reason of being a depositor. The fact that later money did come in, — which was collected by Allbright, — in no way establishes the fact that money belonging to R was in the bank when R made said assignment to appellant more than a month before appellant transferred same to Allbright. True, Mr. Flatt, who was designated in the resolution first referred to as the person authorized to collect the assets and debts of the bank, testified that on May 29, 1933, he paid to Mr. Albright $1384.20 on the strength of the assignment which had been transferred to Allbright by appellant, — but this is not enough to support any legal conclusion that there was any money in the bank belonging to R on April 26, 1933, when he made said assignment to appellant.

The State also urges that the case of Landrum v. State,73 Tex. Crim. 580, lays down a doctrine differing from that announced in our opinion herein. We do not think so. It there appears that Mrs. Dunn turned over to Landrum certain stocks and gave him her note, — same to be used in procuring for her other named stocks. Landrum sold the stocks turned over to him by Mrs. Dunn and appropriated the proceeds. He was charged with embezzling said proceeds. This court affirmed his conviction, holding that the court's charge put before the jury squarely the question as to whether Landrum conceived the intent to appropriate before or after he sold the stocks of Mrs. Dunn, — if the former to acquit; — if the latter to convict, — and that the action of the jury in convicting showed that in their opinion the testimony established that appellant's intent was to appropriate the proceeds. In the case before us R testified as follows: "He did not tell me he was going to sell the assignment of the money I gave him. I do not know whether the assignment of the money I gave was sold or not * * *. At the time I made the trade with Mr. New, it was the understanding that he was going to give me bonds in exchange." So also in the instant case the court charged the jury that if they believed that appellant, at R's direction, took *Page 35 possession of the bank account of R in the Dundee bank and sold same, and that the value of the money he received from the sale of said bank account was fifty dollars or more, "And that the defendant did then and there without the consent of said R embezzle, etc., said money, if any, the jury should find him guilty," etc. We find no testimony in the record showing that appellant sold R's bank account for any money, but the testimony shows the contrary, and establishes that he exchanged the assignment for building and loan stocks. We see no similarity in the case before us and the one referred to. Nor can we agree that our holding in our original opinion is at variance with what we said in Mannen v. State, 109 Tex. Crim. 74,3 S.W.2d 443. There the conviction was for embezzlement of stocks which were delivered to the accused or his confederate for the purpose of sale and which were in fact sold. We held the facts in that case sufficient to evidence the embezzlement of the stocks.

Being unable to agree with the State's contention, the motion for rehearing is overruled.

Overruled.