I agreed to the affirmance of this case at a previous date of this court. There has been no legal reason suggested in motion for rehearing why the affirmance of the case is not correct. I did not agree to the proposition laid down in the original opinion that a contested civil judgment is conclusive evidence in a subsequent criminal prosecution for a defalcation, but the authorities cited in appellant's brief, which are collated in the opinion on motion for rehearing, are all authorities where a contested judgment was introduced in a subsequent criminal prosecution. But in this case we have an agreed judgment. The evidence in the record shows that appellant was present during the time that the evidence was being taken before the auditor, and knew that the judgment was entered, or at least it shows that he was present, and refused to go on the stand, and the trial court asked him this question: "Q. Did you refuse to take the stand and testify? A. I did not take the stand." In other portions of appellant's testimony he tries to excuse his failure to go on the stand on the ground that the civil suit, as he terms it, was predicated upon segregated items. In that case the State was trying to recover from appellant, the sureties on his bond, and from W.M.C. Hill, his principal, the amount of his defalcation and shortage. Appellant refused to get on the stand or explain a single item, or show wherein a single item was wrong, and his explanation, as stated for it, is because they were suing upon segregated items — a most absurd reason. The prosecution asked appellant this question: "Don't you know that you would not take the stand as a witness because Judge Reese, who was attending to the suit, on behalf of the State, had a stenographer there to take your evidence down in writing? A. I did not see any. Q. You were informed of the fact that if you testified to these facts that a stenographer would be there to take your evidence for the State? A. I naturally supposed it would be taken down. Q. Did Mr. Hill, or his lawyer, Judge Smith, who used to be district judge, or W.A. Hudson, or Mr. Hill himself, ask you to take the stand and testify as to whether or not that was your private money; or any facts that would save them or keep them from having to pay the money? A. It is my impression that they left it entirely with me and did not insist on it; and they stated *Page 314 they did not blame me for not doing it. Q. If it was the truth it did not hurt for a stenographer to take it? A. It is being taken down now."
I have quoted this excerpt from the evidence to show in part, and the record is full of other testimony showing that appellant was an active participant both in the taking of testimony and assisting the auditor, upon whose findings an agreed judgment was subsequently made and, therefore, he is bound by his agreement, and it can be proved upon him in a subsequent prosecution. If he had stated to any one at the court that he owed the State $4,200, this admission could have been proven. Then if he concedes and enters up an agreed judgment for the sum of $4,200, why can't this equally be proven? Certainly it can. As I stated above, the authorities cited by the court in the opinion overruling the original opinion and granting appellant a new trial, relate to contested judgments. But certainly where appellant is present, and an active participant in accounting between himself and the State, with his lawyers and legal advisers all present, agrees with the State to enter a judgment of $4,200, then it is frittering with justice to say that the introduction of said agreed judgment could form a basis for the reversal of the case. The record before us shows a most shameless prostitution and betrayal of a high trust on the part of appellant, and a defalcation so infamous in its proportions and so outrageous in its details as to startle the mind when it is insisted the introduction of an agreed judgment could have done him any injury in this case, even conceding it was not admissible. The record shows thousands of dollars of defalcation over and above the $4,200. It is very troublesome from the record to ascertain the amount because of the infamous rascality manifested by appellant in mixing his own private funds with the State's funds, in covering it up, and putting it in banks all over the State of Texas. The evidence clearly would warrant a judgment against appellant for at least $20,000. He admitted in the agreed judgment that he was defaulter in the sum of $4,200. That was a compromise. The auditor's report showed he owed $6,000. He said this report was made up from "segregated items." As stated above, the conclusion from this record would be irresistible that an auditor's report would show at least a defalcation of $20,000. However, if this appellant has not been tried according to law, he should have a new trial, but I solemnly protest against the statement that he has not had a fair trial under the law of this State, and assert the proposition laid down in the original opinion that he has had such a trial; that the record is replete with defalcations, and the State's case is manifoldly made out, and there is no error in the record requiring a reversal of the case. I therefore dissent from the opinion reversing the case. *Page 315