We did not deem it necessary to discuss at length appellant's exceptions to paragraph three of the charge of the court. Paragraph two of said charge is as follows:
"You are charged herein that before you can find the defendant, E. M. Sanderson, guilty of the offense of embezzlement, you must find, beyond a reasonable doubt: (1) That the defendant was the agent of the corporation, as alleged, and that by the terms of his employment he was charged with receiving the property of his principal. (2) That he did so receive property belonging to his principal. (3) That he received such property in the course of his employment. (4) That he embezzled, misapplied or converted it to his own use."
In said paragraph three, to which exceptions were addressed, the jury was told that if they found that appellant while agent of the South Vernon Oil Company did fraudulently misapply, etc., certain property belonging to said company of the value of more than fifty dollars, which had come into his possession by virtue of his being agent of said company, they should find him guilty, etc. In addition to this, the court gave a special charge asked by appellant instructing the jury that before they could convict they must find from the evidence that appellant was such agent and charged with the duty of receiving the property described in the indictment; that said property belonged to said company, and was received by him in the course of his employment, and was misapplied and converted by him, etc. The charge as a whole is not, we think, open to the complaint that it assumes as true facts which were in issue, and that Pope v. State, 170 S.W. 150, and other authorities to which we are referred do not apply.
In the concluding sentence of the first paragraph of our original opinion we referred to a qualification to bill of exception No. 1. Our attention is called to the fact that this purported qualification is a notation signed by the District Attorney. The facts therein stated are in no way verified by the trial judge. *Page 202 We overlooked this in considering the bill. Counsel is correct in his contention that this notation should not be considered as part of the bill. It remains to be determined whether the bill presents such matter as calls for a reversal in the absence of the notation. The term of court at which this case was tried adjourned on the 28th day of November. Appellant's application which is made the basis of bill of exception No. 1 was filed on November 5th, the day upon which the case was called for trial. The application is not one for postponement, requesting that counsel be given an opportunity to talk privately with appellant and thereby prepare for trial, but is a request for continuance because prior thereto the jailer had declined to let counsel have a private conversation with accused. He had talked to him on three occasions in the jailer's presence. The right of counsel to have a private interview with one accused of crime, for the purpose of advising him and making preparation for trial, has been recognized and jealously guarded, as is apparent from the opinions in Turner v. State, 91 Tex.Crim. R., 241 S.W. 162, and authorities therein cited, and in Welk v. State, Tex. Cr. R. ___, 265 S.W. 914. Having been deprived of the opportunity of a private interview with accused up to the time of the trial, if counsel had then made application for postponement in order that he might have such interview, and after such interview had presented application for a further postponement (or continuance if the facts justified it) to secure witnesses necessary to support a defense which had come to his knowledge during the private interview, we would have a situation similar to that presented in Turner's case (supra), upon which appellant seems to chiefly rely. In that case the sheriff had declined to permit accused's counsel to interview him privately, although the court had ordered him to do so, and no such private interview was had until the day before the case was called for trial. When the case was called accused requested a postponement upon the ground that by such delay he would be able by description to identify persons whose names he did not know, but with whom he claimed to have talked, and whose evidence was believed to be material to his defense; that this information would enable his attorney to identify the witnesses and secure their attendance. After discussing generally the rights of one accused of crime to have the benefit of counsel in advising and preparing the case for trial (and the principles there announced are here reaffirmed), the opinion concludes in the following language:
"In the instant case, from the time of their incarceration until the day before the trial, the appellants were, by the officer who *Page 203 had them in custody, denied the privilege of a conference with their counsel as contemplated by the laws of the land. When they finally had the opportunity of revealing to their counsel that there was evidence which would support their testimony to the effect that they were innocent, their motion to postpone the trial for a reasonable time was a request which, under the facts, in our judgment, the trial court was not warranted in refusing."
From Welk's case (supra) we take the following quotation:
"Arbitrary refusal to allow one accused of crime the right to confer with counsel would merit and should receive severe condemnation, and if on appeal such fact be shown, and that a postponement or continuance for the purpose of consultation was refused, we think the case should be sent back for another trial."
It is further said in Welk's case:
"However, neither before the trial nor at any time during its progress was a motion presented to the trial court to delay the case, upon the ground that the denial of conference with appellant had rendered it impracticable for counsel to make the necessary preparations for trial, save as it related to the issue of process for witnesses, which, as before stated, was unavailable because said witnesses were produced in court."
In Welk's case appellant was also complaining because he had been denied a private interview with his attorney, but the application for continuance was based upon the absence of three witnesses process for whom had been delayed in issuing because of a failure up to that time to have such private interview. These witnesses appeared in court and therefore the matter complained of passed out of the case, but counsel still insisted that the judgment should be reversed because of the prior refusal of the officer to grant the interview. Upon this point we said, "If he is right about this, then exactly the same point would be available if this alleged wrongful act had occurred six months before the trial of the case." So in the present instance, if appellant had requested a postponement of the trial in order that he might have the privilege of a private interview with his conusel, and this had been denied, or if, after a private interview had been granted, he had asked a further postponement (or a continuance if the facts warranted it) to prepare for trial upon matters then disclosed to his counsel, and this had been denied, a question would have been presented which this court would have felt constrained to seriously regard, because of the denial of a substantial right guaranteed to appellant. We believe, however, under the facts recited, no such condition is presented and that this contention of appellant cannot be sustained.
The motion for rehearing is overruled.
Overruled. *Page 204