In his motion for rehearing appellant first renews complaint that he was not allowed to prove by his witness Colley the habit and custom of the Bartlett Insurance Company with reference to allowing all agents to collect premiums, and that such parties were instructed to collect any and all premiums whenever they could. We note from the record that appellant made no claim that he had any right to collect $52.20 premium from Frank Smith, the alleged injured party. Appellant denied emphatically that he got such money or any part of same. Nor did he claim that Polk, who, — according to State witnesses, — was with appellant and acting with him in obtaining from Smith the check for $52.20, — had any right to collect such premium. We have again examined Colley's testimony, as set out in bill of exceptions No. 9, which testimony was rejected. Colley did not propose to swear to any dealing or contract between Polk and said insurance company, or between appellant and the company. Colley did not attempt to say when he worked for said insurance company, nor that he knew what the company's rules were as to collection of premiums by agents at the time Polk and appellant got the $52.20 check from Smith. Glass, secretary of said insurance company, swore that all agents had the right to collect first premiums from customers, but the money paid to Polk and appellant by Smith was not of that kind. It was not the first payment on a policy. Polk's representations, as testified to by Smith, were that it was the payment in advance of a year's premium on policies already in force, he representing that if Smith paid a year in advance he, Polk, would discount the amount ten per cent, and that Smith could thus pay his annual premium amounting to $60.00 by giving a check for $52.20 as *Page 585 advance payment. We are still not able to see the materiality of the proposed testimony of Colley.
We think the trial court not in error in admitting in testimony the check stub of Mr. Smith of date September 24, 1935, showing that a check had been given of that date for $52.20 drawn to R. L. Johnson, this being, according to Smith, the name given by appellant at the time said parties obtained from witness the check in question. It is true that a few days after the date on the check stub, appellant and Polk, according to Smith, came back to him and made some complaint of the check for $52.20 made payable to appellant under the name of R. L. Johnson, and Smith swore that he then gave them another check for $52.20, which is the one described in the indictment, and this check was cashed. The check stub objected to verified and supported the testimony of Smith, and corroborated his story that appellant came to him under an assumed name and got from him a check for $52.20 for insurance renewal. In our opinion said evidence was material and admissible.
We see nothing of material error in our former opinion based on the fact that in same we discussed appellant's guilt on the facts as based on his cashing and appropriating a check dated September 24th, when in fact the check described in the indictment, and offered in evidence, and shown to have been appropriated, was of date September 26th. We were discussing the substance of the question involved in this case, and did not and do not regard the date on the check as of materiality. Nor was our conclusion that the evidence in this case was sufficient based on proof of appellant's appropriation of various and sundry other items of money collected by him at times other than that of the alleged misappropriated check. While the averment in the indictment was of the appropriation of said check, and his guilt was made to depend on proof of that fact, we see no error in the admission of the testimony relative to appellant's misappropriation of other items while working for said insurance company.
Being unable to agree with appellant's contentions, the motion for rehearing is overruled.
Overruled. *Page 586