J. P. Stallings v. The State, 29 Tex. Ct. App. 220

WILLSON, Judge. It is alleged in the indictment that the money embezzled was the property of “ an incorporated company, to-wit, the Singer Manufacturing Company.” This allegation is sufficient, coming fully within the rule declared in White v. The State, 24 Texas Court of Appeals, 231. It is charged in the indictment that the defendant embezzled “$150, current money of the United States of America, of the value of $150,” the property of said corporation. Embezzlement is punishable as theft (Penal Code, art. 786), and unless the property embezzled was of the value of $20 or more, the offense would not be a felony.

Penal Code, arts. 735, 736. To sustain this conviction it is essential that the evidence should prove that the defendant embezzled money of the value of $20 or over at one and the same time. This essential of the offense is not proved by the evidence in the record. There is no evidence that he appropriated at any one time money of the value of $20 or more.

Defendant signed a statement in which he admitted that he had received certain amounts mentioned in said statement “in cash or its equivalent.” Conceding that “cash” means money, there is no evidence showing how much cash he received, or the value of it, or the time he received it. In this particular the evidence does not sustain the conviction. We are of the opinion that the conviction is unsupported by the evidence in other essential respects. It does not satisfactorily appear to our minds from the evidence before us that the defendant has appropriated any funds belonging to the Singer Machine Company.

We think the evidence leaves room for grave doubt upon the issue of his indebtedness to said company. The strongest evidence against him upon this issue are his own admissions, but the circumstances under which these admissions were made, his subsequent denial of the correctness of them, and other evidence adduced by him on the trial, render it quite probable that he made said admissions inadvertently and through mistake of fact. But, conceding that the defendant did appropriate money belonging to the company, we think the evidence fails to show that the appropriation was accompanied by a fraudulent intent.

He at no time concealed or attempted to conceal any of his transactions as agent of said company. He at no time denied any collection made by him. His contention all the time was that the company had not given him the credits to which he was entitled, and that upon a fair settlement he would not be indebted to the company, but that the company would owe him. It occurs to us that the matters involved in this prosecution should be adjusted in a civil suit, and should not be made the subject of a criminal action.

Without determining other questions presented in the record, we reverse the judgment and remand the cause, for the reason that the conviction is not, in our opinion, warranted by the evidence. Reversed and remanded. Hurt, J., absent.