Appellant was convicted of felony theft in the District Court of Hardeman County, and his punishment fixed at two years in the penitentiary.
It is shown by the statement of facts that appellant deposited on April 14, 1921, $3500 in the Farmers State Bank at Vernon. Between that time and the close of business on April 30, 1921, he checked out $3260.40 of said deposit, leaving a balance of $239.60. One of said checks for $1650 was given to J.T. Byrd, appellant's father, who also carried an account at said bank, and when this check was presented to the bank, $125 in cash was called for and the remaining $1525 was left for deposit to the credit of J.T. Byrd, but by reason of the similarity of the middle initial of the payee's name and that of appellant, a wrong credit entry was made on the bank books and said $1525 was credited to appellant's account. On April 30, 1921, appellant went into said bank and procured a cashier's check for $300, and on said date, according to the employes in the bank, he asked for and obtained a statement of his account. On the same day appellant went to the neighboring town of Chillicothe, in Hardeman County, and deposited the $300 represented by said cashier's check, and drew on the Farmers State Bank of Vernon a demand draft for "my balance," same to be deposited to appellant's credit with the Chillicothe bank when paid. Said draft reached Vernon on May 1st, and by reason of the erroneous deposit to appellant's credit mentioned above, said draft was honored for the amount of $1764.60, which was transmitted to the Chillicothe bank, and on May 3rd credited by the latter bank to appellant's account, and a deposit slip was sent him therefor. On May 4th he drew out of said bank $500, and on May 5th the balance of his account, amounting to $1489.55 in two separate checks. On May 4th, the day appellant. got the deposit slip, he went to see a lawyer and told him he thought the bank had paid him more money than he had. The attorney testified very indefinitely as to the conversation and said that he told appellant that if he did not know what his balance was and they paid him more money than was due him, it was not his fault until he found out what it was, — or something to that effects and that he told appellant that if he found out he was not entitled to that money he could return it, — or something to that effect; that appellant said he did not want to get into trouble, — or something to that effect. The mistake of the Farmers State Bank as above outlined was not discovered by the bank until May 24th, at which time a check was presented for the amount of the J.T. Byrd account, something over $1800. The manner and cause of the mistake was soon found, and officers of the bank, after various unsuccessful efforts to get appellant over telephone, went to Chillicothe to *Page 421 see him and tried to get him to rectify the matter. Apparently he claimed that they would not have corrected the error had it been against him and in their favor, and when they told him they would have done so he replied, "Like hell you would." He admitted to these men that he figured out that he had gotten more money than was coming to him, but said he had talked to parties who told him he had not done anything wrong, that he had not signed up anything down there. One of said bank officials asked him if he did not acknowledge that he got more money than was coming to him and he said "yes," but that he had been skinned out of his salary by another man and had to do something to get by. He told them his father once got $400 from a bank more than was coming to him and that they told his father they would have him arrested, and he paid no attention to them. He accused the bank people of having brought the sheriff along with them to try to scare him, and said he might have fixed it up if they had come to him like a man. The only satisfaction he would give them was that he would think it over for a few days.
Appellant testified and admitted getting more money than he thought was his, and said he drew it out of the bank intending to keep it for the rightful owner, and that when such owner came and proved to his satisfaction that it was his, he would let him have it. He said he had in cash in his house the day the bank officials came to see him, more than $2,000. He said that when he found he had more money in the bank at Chillicothe than he was entitled to, he drew it out to protect the rightful owner. He also admitted knowing he had checked out most of the $3500 deposited by him in the Vernon bank before he drew the draft which was overpaid. This is a statement of the facts sufficiently showing the State's case.
Appellant asked an instructed verdict, which we think was correctly refused.
The trial court told the jury that if appellant came into possession of said money, or any part thereof exceeding fifty dollars, by mistake, and knowing same not to be his, he then formed the fraudulent intent to appropriate same, and did so appropriate it without the consent of the owner, he would be guilty of theft. This was correct, and a conviction under such charge appears to us to be sustained by the facts in this record. Article 1329, Vernon's P.C., cites many authorities applicable to cases such as that now before us.
The following three exceptions were reserved to the charge of the court below. It was objected that there was a failure to insert in that paragraph of said charge wherein the law was applied to the facts, a statement that such facts must be proved beyond a reasonable doubt. The law of reasonable doubt in the usual form was given in the charge as applicable to the case made out by the State, and we have held often that failure to apply it to the fact paragraph was not error. Branch's Ann. P.C., Sec. 11; Rodriguez v. State, 79 Tex.Crim. Rep.. *Page 422
The objection that the charge was erroneous in submitting to the jury the guilt of the accused in case he received said money from R.B. Gibson, was not tenable. The allegation in the second count of the indictment charged theft of money from R.B. Gibson, and Mr. Gibson was shown to be the cashier of the bank from which the money in question was paid by mistake on appellant's draft, and Mr. Gibson testified that he had the actual care, custody and control of the funds of said bank.
The objection to the submission of the issue of the appellant receiving $1525, is not supported by the record. The court told the jury in his charge that if appellant received $1525, or any sum exceeding fifty dollars, etc. The proof showing that appellant drew out of the bank by three separate checks, each exceeding fifty dollars, all the money paid by mistake, we are of opinion that the charge was correct and applicable. It is not necessary to prove the taking of the exact amount of money, or number of articles of property, alleged to have been taken.
Appellant asked a special charge to the effect that if he received the money in question intending to hold same pending a determination of the question whether the money belonged to him, and did not then intend to fraudulently appropriate same, he should be acquitted, even though the jury might believe that he subsequently formed an intent to appropriate same. This was given by the trial court, and we think sufficiently presented appellant's defensive theory as supported by the facts. Another special charge asked to the effect that if he acted on the advice of an attorney in receiving said money, and that his intention was to use same until it was determined that it was not his money and that it belonged to some one else, was properly refused. If we understand the testimony of the attorney it was to the contrary as to the character of his advice. Appellant said he went to see the attorney two or three days after he received the deposit slip above mentioned. If this be true he had already drawn from the Chillicothe bank the money in question as shown by date of his checks above set out. Nor do we think a man may appropriate property which he knows not to be his, on the advice of anyone.
The indictment contained four counts, but two of which were submitted to the jury. As we understand the rule, where but a single transaction is referred to and involved, the State may present as many counts in its pleadings as it sees fit and no election will be required. This applies in the instant case. It is not necessary in such case that the verdict specify the count under which conviction is had. But one transaction being involved, but one conviction could legally result, and the doctrine of autrefois convict or acquit would apply to any future effort of the State to prosecute the accused.
We do not think the verdict contrary to the evidence. Appellant while a witness stated that he remembered having checked out practically all of the money that he had on deposit with the Vernon bank before he drew the demand draft for deposit with the Chillicothe bank. *Page 423 He also admitted that he knew that he got more money than was his. The question of his intent with regard to it was submitted to the jury in a manner and language chosen by his own counsel, in a special charge and the jury decided against him upon his contention that he did not intend to keep said money.
Finding no error in the record the judgment will be affirmed.
Affirmed.
ON REHEARING. December 14, 1921.