The appeal was dismissed at a former term on account of the fact that the recognizance was defective. A sufficient recognizance having been supplied, the appeal is reinstated.
Upon a more careful consideration of this record we have concluded to withdraw the opinion filed herein on June 20, 1928, and to substitute therefor the following:
The conviction was for embezzlement; punishment fixed at two years confinement in the penitentiary.
From the count of the indictment which was submitted by the trial court it is manifest that the conviction was for the embezzlement of $88.00. Guilt was predicated on the proposition of fact that a check for $88.00, — the property of Baylor University, — had come into appellant's hands by virtue of his employment, and that cash money of that amount, also came, on October 29, 1926, into his hands in the same way, and that he abstracted and appropriated the $88.00 in money and substituted therefor the $88.00 check so that the books, deposits, etc., on said date would balance and correspond. It was proven that some time between October 26th, the date of issuance, and October 30th, the date of deposit, the said check came into appellant's hands, but such proof was by the circumstance only of the endorsement of said check in appellant's handwriting. Said check was part of deposits made by some one for Baylor on October 30, 1926, totaling $727.49. This total was made up of two deposits, one in the American Exchange Bank *Page 466 of $389.10, the deposit slip being itemized and showing to have been made up entirely of checks; another deposit was in the North Texas Bank of $338.39, also itemized and all of it being checks except $12.87, which was money. Other employees of Baylor University testified that on October 29, 1926, actual money was received in the office where they worked and of which appellant was manager, amounting to from $106.65, as sworn by two witnesses, to $160.65, as sworn by another, the difference not affecting our decision. As stated above, the State's theory of this case was that appellant had received an $88.00 check, and that he made up the deposit slips on October 30th, putting thereon the said check in lieu of $88.00 of the money taken in on said October 29th, which said $88.00 in money he kept. No witness testified that the money taken in on October 29th was delivered to appellant. No one swore that he or she gave the receipts for that day to appellant. It was not shown by comparison or otherwise that the deposit slips made on the morning of October 30th, and containing the receipts of the day preceding, were in appellant's writing or made out by him, nor was it shown that he made the deposits on October 30th. The only testimony aside from the fact that appellant sometimes made the deposits, and that he was the manager of the office, and that the endorsement on the check in question was in his handwriting, was a confession made by appellant which, in most general terms, admitted that covering a period of years he had appropriated about $3,000.00 belonging to Baylor University, and stated that his method was to take out cash received and substitute checks therefor in making deposits, thus making the receipt books and deposits balance. Not a word in the confession referred to the transaction involving the $88.00 check in question or the $88.00 in money, or any other particular transaction; nor was there any admission in said confession that he took any money on October 29, 1926, or on any other specific date. It appears obvious that this appropriation of the particular $88.00 in money on the date mentioned must have been proved by testimony direct or by circumstances sufficiently strong to make evident his guilt, and to exclude all reasonable probability that another and not appellant committed the crime, if any.
Let us briefly review the testimony. All the witnesses who were employees of the University said that a receipt book was kept in which was entered correctly the receipts for each day, and one testified that the receipts issued were serially numbered, and another *Page 467 testified that the receipts of each day formed the deposits of the succeeding day. As showing the receipts for October 29, 1926, the part of the receipt book reflecting the receipts for that day was introduced in evidence. It shows twenty-seven receipts serially numbered from 14491 to 14517 inclusive, for checks and money totaling $578.17. Neither the book nor the witnesses who testified about it make clear how much was cash and how much was checks received on that day. The deposits of October 30th were $727.49, which included an $88.00 check not shown on the receipt book among the receipts of October 29th. In fact, comparing the receipt book in evidence for October 29th with the itemized deposit slips of October 30th, also in evidence, we note that in addition to the $88.00 check referred to, there appear twenty-one other checks on the deposit slips, most of which are for small amounts, and which other checks aggregate $227.60, and taken with the $88.00 check mentioned showed a total of $315.60 as deposited on October 30th, none of which showed on the receipt book to have been received October 29th. There seems to have been a cash book kept in the office of the University, which is referred to by witness Boyle, but was not offered in evidence. All the witnesses who worked in the office swore that from the cash received on any day, checks might be cashed by employees, nurses, doctors or patients, none of which transactions would be entered on the receipt book, and that in making up the next day's deposits, checks of this character would appear on the deposit slips as checks and not as cash. All the witnesses said that only small checks of employees, patients, etc., would be cashed out of the cash receipts of the office.
We have then this state of case shown by this record: The deposit slip of Baylor in the American Exchange Bank for October 30th shows thirteen checks each for less than $25.00, aggregating $80.10, not one of which appears on the receipt book showing the receipts for October 29th; also on said deposit slips appear two checks, one for $88.00 and the other for $76.50, neither of which appears on said receipt book of October 29th. On the deposit slip of the North Texas Bank for October 30th there appear six checks, each for less than $25.00, not listed on the receipt book of October 29th, said checks aggregating $42.50; also one check for $29.52 not shown on receipt book for October 29th. We may also here call attention to the fact that the North Texas Bank deposit slip showed $12.87 in money as deposited on October 30th. It seems too plain for argument that it would be impossible for the appellant to substitute *Page 468 checks totaling $315.60 and take that amount of money out of the receipts and appropriate it, when the total cash receipts for that day, as testified to by two witnesses, was only $106.65. We might further observe that it would appear entirely reasonable that the nineteen small checks, not shown on the receipt book of date October 29th, but deposited by some one for the University on the 30th and shown on the deposit slips to be checks and not cash, might have gotten into the money drawer as the result of cashing small checks for employees, patients, etc., in accordance with the usual custom of the institution, and these would have absorbed the cash received on the 29th. In other words, the proof goes no further than to show that of the $106.65 cash received October 29th, only $12.87 was deposited, leaving the inference that the other $93.78 was paid out to some one, or taken by some one. Granting that the custom was established on the part of the management of the office, to cash small checks out of cash receipts, and that such checks would merely be put in as checks in making up deposit slips the next day, and would not appear on the books; and admitting that the deposit slips of October 30th show small checks aggregating $122.60, none of which appear from the receipt book to have been taken in on October 29th; also that three other checks aggregating $194.02 appear on the deposit slips of October 30th, not shown to have been received October 29th, such facts leave room for so much doubt that we are unwilling to allow this conviction to stand. Possibly upon another trial some of the matters may be cleared up. In passing, we might observe that the case was purely on circumstantial evidence, and the law of such issue should have been given in the charge.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING.