Appellant was convicted of embezzlement, and his punishment assessed at two years confinement in the penitentiary.
Appellant at one time was a member of the Wendell-Pope Jewelry Company, which firm was indebted to Shuttles Brothers Lewis of Dallas, Texas. The Wendell-Pope Company failed, and bankruptcy proceedings were had. A conversation took place between appellant and a member of the Shuttles firm on their way to attend a creditors' meeting, and at this time it was agreed that Mr. Pope would continue in business in Dallas, doing business in his wife's (M.E. Pope's) name. The terms of this agreement is one of the main questions at issue in this case. Appellant contends they were to extend him a line of credit. *Page 263 Shuttles Brothers Lewis contend they were to let him have goods on consignment — the title remaining in them. It would appear that appellant secured a $10,000 stock of goods from Shuttles and engaged in business. W.W. Guy worked for appellant, and he testified: "In the month of May this year I was employed by Mr. Pope as stenographer. I have been with them from January 12th to the 11th of May. Up until the time he went away, yes, sir. I did not know where he was going when he left. I did not know that he was going to discontinue business. The last month that I worked for him, my duties were collecting. Prior to that time I worked at the bench and on watch repairing.
"He told me that Shuttles Brothers Lewis owned the goods in his place, and besides he would send me down there for them and send me down to have them checked up. He sent me down there once a month. He told me to check up on the 27th of each month. He did not send me every time, he and the bookkeeper went part of the time.
"When he would sell goods there in that establishment the notes would be turned over to Shuttles Brothers Lewis. Part of the time he would turn them over the same day that the sale was made. The rule about the office was that the goods were sold on the installment plan and that the notes were turned over to Shuttles Brothers Lewis to have them approved. He told me that the notes had to be approved before the sale was completed. Mr. Pope told me that."
While the issue was sharply contested as to whether the goods were sold to appellant on a credit, or were placed with him on consignment, the court fairly submitted that issue to the jury, and they found against appellant's contention, and we can not say they were not justified in so doing, and in our opinion the evidence will sustain the verdict. The contention that appellant's wife, M.E. Pope, was the consignee, if the goods were placed on consignment, can not be sustained. The trade was with appellant, and it was understood by him and Shuttles Brothers Lewis that the name of the wife of appellant would be used to keep creditors from interfering, and the goods were delivered to him, not to Mrs. Pope.
It appears from the testimony that on Saturday, May 11th, appellant's stock was checked by a representative of the Shuttles firm, and at that time he was asked in regard to a certain diamond of the value of about $500. The State's evidence would show that he then stated he had placed it with a certain man for sale, and agreed to bring it in Monday. Instead of doing so he left for St. Louis, where he was arrested, having this diamond with him. Appellant desired to introduce testimony that the Shuttles firm agreed not to prosecute him if he would pay them a certain amount of money, which they claimed was owing them. This all occurred subsequent to the arrest of appellant, and would not throw any light on whether the goods were sold to appellant or he had them on consignment. The offense, if one had been committed, could not be compromised by the Shuttles firm. Appellant was *Page 264 being prosecuted, charged with the embezzlement of one specific diamond, and evidence of a matter taking place subsequent would not be admissible, unless it would tend to throw light on whether or not this diamond had been sold to appellant, on credit, or it had been delivered to him as the agent of the Shuttles. Therefore, the court did not err in excluding the evidence of offers of compromise after the embezzlement had taken place and prosecution commenced.
It appears that the Shuttles firm had taken possession of about $10,000 worth of goods on May 11th, and appellant had agreed to deliver the diamond, which he is being prosecuted for embezzling, on Monday, May 13th. This he did not do. The sole question in this case is, whether this particular diamond was held by appellant as agent of the Shuttles firm, or had been purchased by him, and none of the testimony offered, and which was excluded by the court, would tend to prove or disprove that fact.
In the absence of requested instructions, it was not incumbent on the court to give a definition of the word "consignee." It has a well understood meaning. The court instructed the jury: "Four things are essentially requisite to constitute the offense of embezzlement:
"1. The defendant's agency whereby he was charged with the duty of receiving the property. 2. The receipt of the property. 3. Its receipt by virtue of his agency. 4. The fraudulent conversion or misapplication of the property by him.
"If either of these requisites is wanting in a prosecution for embezzlement, then the prosecution has failed to establish that crime, and the defendant would be entitled to an acquittal." . ..
"If you have a reasonable doubt or if you believe that the property described in the indictment came into the possession of defendant as a sale on credit, then you will acquit the defendant. If you believe or have a reasonable doubt that Prescott, for Shuttles Brothers Lewis, agreed to sell goods on credit to defendant in consideration of his agreeing to pay the debt formerly owed Shuttles Brothers Lewis by the Wendell-Pope Jewelry Company, and that the property described in this indictment was sold to defendant under this agreement, you will acquit the defendant."
This presented affirmatively defendant's theory of the case, and the charge as a whole was a fair presentation of the law applicable to the evidence.
It may be said that the issues of fact were sharply contested, but the evidence offered in behalf of the State would show a plain case of embezzlement, and the jury finds this evidence to be true. No error is pointed out in the record, and the judgment is affirmed.
Affirmed. *Page 265
ON REHEARING. June 25, 1913.