Smith v. State

1. Embezzlement from an Incorporated Company—Indictment.—An indictment which charges embezzlement of funds of an incorporated company, to be sufficient, need not further allege the charter or act of incorporation, nor that the company was incorporated under the laws of any State or foreign power. 2. Same—Allegation and Proof as to Want of Consent.—Upon a trial for embezzlement by an express agent of the funds of an incorporated company, where the indictment charged that the money was taken without the consent of the company, Held,, that the proof was sufficient which showed a want of consent of an agent who had direct supervision of the office at which the money was received by the company, and it was not necessary to further prove want of consent by the president or the secretary of the company. 3. Same—Admissions and Confessions Tantamount to Proof of Want of Consent, When.—On a trial for embezzlement by an express agent, his admissions and confessions that he had taken the money, and had lost it at poker, Held, tantamount to an admission that he had used the money without the consent of the company. 4. Same —Charge—Circumstantial Evidence.—On a trial for embezzlement, where defendant had confessed to taking the money, and the court charged the jury on circumstantial evidence, Held, defendant had no ground of complaint in-this matter, because the charge was more liberal than he was entitled to. 5. Same—Bond of Indemnity—Effect of.—On a trial for embezzlement by an agent of an express company, where he was permitted to introduce proof, that at the time of his appointment he had been required to give, and had executed, an indemnity bond to the company for any losses which might be occasioned by his defalcations, Held, that such bond had nothing to do with the case, and that the repayment of the money by the obligors on said bond furnished defendant no immunity from criminal liability, and that it would be a monstrous doctrine, that on account of such bond a party could steal his company’s money and go unwhipped of justice. 6. Same—Fraudulent Intent—Evidence of Want of Concealment—Confession.—On a trial for embezzlement, a fraudulent intent is sufficiently shown where it appears that defendant secretly took the money, and did not confess to the taking until he was found out and charged with it; and that a mere want of concealment, had such been the case, and confession that he had taken the money, when taxed with it, could not and did not wipe out the stain of embezzlement.

This appeal is from a conviction for embezzlement, the punishment being assessed at three years’ imprisonment in the penitentiary. The charging part of the indictment is as follows: “That one E. G. Smith, on the 28th day of November, in the year of our Lord one thousand eight hundred and ninety-three, with force and arms, in the county and State aforesaid, was the agent of an incorporated company, to wit: the Pacific Express Company; and the said E. G. Smith did then and there fraudulently embezzle, misapply, and convert to his own use, without the consent of said incorporated company, certain money, corporeal personal property, belonging to said incorporated company, to wit, eight hundred and sixty-five dollars in money, of the value of eight hundred and sixty-five dollars; which said money had come into the possession and was under the care of the said E. G. Smith, by virtue of his said agency, contrary,” etc. Defendant moved to quash the indictment for the following reasons, viz: “1. Because said indictment does not set out with sufficient certainty and distinctness the incorporation of the Pacific Express Company, in this: the pleader fails to allege and plead the charter or act of incorporation of this company, and fails to allege the State under whose laws the same was incorporated, and fails to allege the same was duly incorporated under the laws of any State or foreign power; and because it fails to state the date and manner of incorporation, and fails to set out the charter of said incorporation at length, but on the other hand states only the conclusion of the pleader that the same is incorporated, without averring any facts to support said conclusion; and because the pleader fails to allege (if the same be a foreign corporation), that the same has procured a permit from the Secretary of this State to transact business within this State. 2. Because the indictment fails to allege the kind and quality of the money alleged to have been embezzled; and because it fails to allege whether the said money, was currency or coined money of the United States; and because the same fails to allege that the same was lawful money of the United States of America.” This motion to quash was overruled. The evidence, as shown by the statement of facts, is as follows: L. S. Garrison, for the State, testified as follows: “I am the agent of the Pacific Express Company in Dallas, Texas, and am in charge of the office at Dallas, Texas. Have been the agent at Dallas, Texas, and in charge of said office for several years. The Pacific Express Company is a corporation incorporated under the laws of the State of Nebraska, with its principal office at Omaha, Nebraska, and its president, secretary, and treasurer living in Omaha, Nebraska. Mr. E. G-. Smith, the defendant, had been money clerk in the office at Dallas for the year next before the 28th day of November, 1893, and on that date. On or about the 6th day of December, 1893, our way-bill clerk’s wife became sick, and it was necessary for me to put another man in his place to relieve him for a few days. In order to do this, as Mr. Smith, the defendant, was the only man qualified to fill the position, I had him checked up in order to put a man in his place, and he to take the way-bill clerk’s place. Mr. Chace, our bookkeeper, checked up the books. Mr. W. W. Aulick, who lives near Reinhardt, in this county, came in and asked the cause of the delay in the transmission of $826, which he had delivered to the company on or about the-day of November, 1893, to be transmitted to D. W. McCoy, at Kerr-ville, Texas. He showed me his receipts for the money, and stated that Mr. McCoy, at Kerrville, had failed to receive the money there, and was writing him concerning it. I at once sent out tracers for the money, and ascertained from the office at Kerrville that the money had never been received there, nor could I find when it had left the Dallas office. I then sent for Smith, who had signed the receipt Au-lick had, in the name of the company (which as money clerk it was his duty to do), and asked him where that money was. He then admitted that he had taken it and used it. I asked him what he had done with it. He said he had lost it at poker. I told him that this was bad. He said, ‘Tes, he had been rolling it a little too high.’ He asked me to give him a chance to replace it. I told him to go out and see what he could do. His salary was $75 per month. This money belonged to the Pacific Express Company, and was of the value of $826, or rather it was in charge and possession of the company, to be transmitted to Kerrville, Texas. Smith used the money without my consent. He came in possession of it by virtue of his agency, that is his duties as money clerk, on the 28th day of November, 1893, in Dallas County, Texas. The company made the amount good and paid to Mr. McCoy, at Kerrville, the sum of $826. • I had him arrested that evening.” [The receipts were here introduced to show that the defendant had received the money from one Mr. Aulick, for the purpose of transmitting it to Kerrville, Texas. The money had been received about ten days before he was arrested.] Cross-examination: “I am the agent of the Pacific Express Company at Dallas, Texas, and am in charge of the office at Dallas, Texas. Mr. James Aiken is the manager of the Pacific Express Company in the State of Texas. He lives in Dallas; has a room over the office in the city of Dallas. He has general management and charge of all the offices in the State of Texas. I know nothing about the want of consent of any other person. I know I did not give my consent for him to take the money. Mr. Smith, the defendant, assisted Mr. Griffin in the checking up of the books, and he never made any attempt to escape or evade detection. He was assisting Mr. Griffin in checking up his books when the shortage was discovered, and as soon as I sent for him he came in and promptly admitted that he had lost the money at gaming, or that he had been living too high. He never denied taking the money, but openly admitted it, and never tried to escape or .avoid detection. About eight or ten days elapsed from the 28th of November, the time the money was received from Mr. Aulick, and before Mr. Smith was arrested.. He had handled large amounts of money each day. The amounts which passed through his hands each day varied from small sums of from $10 to $100 up to hundreds of thousands. It would be hard for me to tell exactly how much he handled each day, without examining the books, but I am satisfied it would average thirty or forty thousand dollars a day, without examining the books. He told me he thought he could replace it by borrowing it from some of his friends. I gave him my consent to go on the streets to see what he could do. This occurred in the morning of the day that he was arrested. I saw him on the streets afterwards during the day, but he was unable to replace the money. Smith has been money clerk for the Pacific Express Company for over a year. Before he was employed, the American Guaranty Company, at our request, made a bond for him to the extent of $2000. I do not know the terms of the bond, and I do not know whether the bond has been paid, .as Mr. Aiken looks after that part of the business. I do not know how much Mr. Smith paid them each month for the bond which they gave us. As soon as a shortage occurs, we forward a statement to the company. All the employes of the company are bonded; that is, before they are employed they make a bond, acceptable to the Pacific Express Company, guarantying the payment of any shortage. During the time Mr. Smith has worked for the Express Company his reputation for honesty and integrity, and his general conduct, has been above reproach. He was the most efficient money clerk we have ever had in our employ.” Mr. Griffin testified: “I have known Mr. E. G. Smith, defendant, for the past ten years. He is about 22 years old. He worked for me in Little Rock, Arkansas. I also worked with him in the express office at San Antonio, before he came to Dallas. I was assisting him in checking up his books when the shortage was discovered. He never denied the fact, but admitted that he had lost the money in a game of poker, or in some other way. His reputation for honesty and integrity has always been above reproach. I never heard aught against him until this occurrence.” The defendant here offered other witnesses to prove the reputation of the defendant for honesty and integrity, and the State then admitted that his reputation for honesty and integrity was good up to the time of this occurrence.