DISSENTING OPINION. I can not assent to the sending of any citizen of Texas to the penitentiary on testimony which to my mind is so wholly fragmentary, disconnected and lacking in convincing facts, as appears in this record. I recognize that when a man admits that he has been guilty of taking a large sum, it does not take as much to bring about his conviction, as when charged with taking in a particular case a smaller sum. Aside from the fact that appellant's handwriting appears in the endorsement of an $88.00 check which is circumstantially shown to have come into his possession, and that he had admitted in the most general terms that during a period extending over two years he had taken some $3,000.00, there is to my mind not a cogent fact in this record justifying his conviction for embezzling $88.00 in money from the funds of the institution for which he worked. In order to make out its case the State had to prove beyond a reasonable doubt that out of the cash received by Baylor Hospital and University at Dallas on October 29, 1926, appellant took $88.00 in money. That he did so was not only not proved, in my opinion, but wholly disproved.
Mrs. Reese, cashier for said institution, swore: "We have a record of $160.65 being taken in in cash October 29th. That record is here. I didn't make that record in person or give receipts for all that money." Boyles, bookkeeper for said institution, swore: "I have gone through the receipt book to see how much of that was actually cash received that day; $106.65 that I can verify was cash that date. * * * I say there was $106.65 cash. I got that from the receipt book." These witnesses were testifying in September, 1927, to the occurrences of an ordinary day's business transacted a year before, and necessarily had to testify to what the books showed, and neither of them undertakes to relate as personally remembered, one single thing that occurred on that date. The page *Page 476 of the receipt book bearing date October 29, 1926, which furnished these witnesses the basis for their testimony, was itself put in evidence. Same showed that the receipts were serially numbered. At the top of said page were three columns, — one for the number of the receipt issued, another for the amount thereof, and the third to show whether the receipt was for cash money taken in, or for checks received. This page is copied in the record on appeal and shows in the third column referred to an aggregate of cash items received that day totaling $69.60, — eight items aggregating $117.30, with no entry indicating whether same were checks or cash, fourteen entries showing receipt of checks. The attempt of Mrs. Reese and Mr. Boyles to explain these items in their testimony resulted in hopeless confusion. For instance, Boyles swore of a $9.05 item which appears on the receipt book as "Ck" that it was cash because the medical college always paid cash. Of another item he said: "That is another cash item; it was originally 'Ck' and has been written over the top 'cash,' — looks like they might have started to make it 'Check.' " Of another item he says: "That one is a check item, it looks like, I can't be sure what it is. I made up my record from this, thatI am testifying against Meyers on." It seems to the writer intolerable that any human being should be convicted of a felony on such testimony.
There is another matter worthy of mention. The deposit slips showing the income of the institution on October 29, 1926, were in evidence and are in the record. Same showed two checks as deposited among receipts of that day which were not on the receipt book, viz.: one for $88.00 and another for $76.00. Neither of these checks appearing in the receipt book as coming in on the 29th, the inference of the State would appear to be that they both represented checks theretofore received by appellant and held out by him until the cash amounted to enough to put them in and take out a corresponding amount of cash. Said deposit slips for that day show cash deposited $12.87. It would seem useless to argue that whether the cash taken in that day was $106.65 or $160.65, same could not be enough to take up the two checks referred to much less leave $12.87 in cash. It also appears equally sure that whether the cash collected was $160.65 or $106.65, that the holding out of $88.00 of it by appellant could not leave the $12.87 cash which was deposited.
But the insuperable obstacle to the conclusion that this record shows appellant to have taken in cash from the funds of this institution *Page 477 on October 29th as much as $88.00 is found in the bank deposit slips which, according to all the witnesses, represented the income of said day. These deposit slips show beyond question the items forming same which are cash and which are checks. Said deposit slips list eighteen small checks as having been taken in on the 29th aggregating $115.60, not one of which appears on the page of the receipt book above referred to, which Mrs. Reese and Mr. Boyles swear shows the business of October 29th. Where did these checks come from? What did they represent? The answer seems plain. Out of the hopeless confusion of this record we find all witnesses agreeing that it was the custom of these people to cash for employees, patients, doctors and others in whom they had confidence, small checks whenever requested, and that in every case where such checks were cashed no entry was made on the books, but such check would be deposited as a check item and not as cash. It was the custom of the institution to list on its receipt book all collections whether check or cash, no matter how small or large. None of these eighteen checks appearing to have been received on that day, and all of them appearing to have been deposited as received on that day, the conclusion seems irresistible that they represented small items of cash advanced upon checks to patients, etc. The only thing in the record in anywise rebutting this conclusion is found in the testimony of Mrs. Reese who says: "I do not remember cashing any checks that day." In view of the fact that she was speaking of a day's occurrences a year after said day, and that the matters were those occurring in the ordinary course of an uneventful day with nothing to fix them in her mind, it seems to the writer that the fact that she said she did not remember cashing any checks on that day is not entitled to the slightest weight as rebutting the unanswerable fact of the presence of these small checks and their deposit as part of the receipts of that day. Certainly a man's liberty should not be taken upon testimony of such flimsy character. The State is compelled to ask that we overlook the presence of these eighteen checks of sufficient amount to absorb $115.00 of the cash, and that we presume against these facts that somewhere, somehow appellant found enough cash to enable him to take out $88.00 in money and put in a check for $88.00.
If my Brethren adhere to such conclusion I must respectfully enter my dissent. *Page 478
ON MOTION FOR REHEARING.