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 Texas. 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 *Page 516 denounced by the law as laid down in the statutes of 1911, Penal Code, Article 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 especial 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. Crim. 586; Malz v. State, 36 Tex.Crim. Rep.,37 S.W. 748; Johnson v. State, 71 Tex.Crim. Rep.; Lee v. State,81 Tex. Crim. 117, 193 S.W. 313. *Page 517
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. Art. 760, C. C. P.; Long v. State,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 check 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 check 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 to from memoranda 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 memoranda 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 memoranda 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 *Page 518 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 Traweek 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 that 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, 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 testimony 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 *Page 519 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.
Affirmed.
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.