J. A. Leonard v. The State, 7 Tex. Ct. App. 417

Winkler, J. This appeal is from a verdict and judgment of conviction on a charge of embezzlement of twenty bales of cotton alleged to belong to the First National Bank of Fort Worth, which, the indictment avers, were placed in the possession of the appellant as bailee, the appellant being the keeper of a cotton-yard in the city of Fort Worth, Tarrant County.

The principal grounds relied on for reversal of the judgment are : first, the insufficiency of the indictment; second, alleged error in admitting testimony against the defendant on the trial below, over his objections, and to the admission of which bills of exceptions were saved by the defendant’s counsel; third, supposed error in the refusal of the court to give to the jury certain special instructions asked by the defendant’s counsel; fourth, supposed error in the general charge of the court; fifth, the refusal of the court below to grant the defendant a new trial.

The grounds of the motion to quash the indictment may be condensed into the following: That the indictment does not state that the cotton was ever ordered by the owner thereof to be returned to the owner, or that the receipt of the defendant was ever returned to the defendant, or that any demand was ever made of said cotton, or any payment was ever made, or tender of the yard-keeper’s fees, or any reason given for not having done so ; that it is not alleged that the defendant ever received the cotton as bailee of the owner; that the cotton-yard keeper is not such bailee in contemplation of law ; and it is not alleged that the cotton was embezzled with a fraudulent intent to deprive the owner of the cotton of its value, or to appropriate it to the benefit of the defendant; that there is no sufficient description of the cotton, nor is the character of the bailment sufficiently averred, nor is the act of conversion sufficiently described; because it is alleged that the defendant was part owner of the cotton; that the indictment charges no offence against the law; and because the bank is a foreign corporation, and the indictment does not allege that it does business in Texas by authority of the laws of the State.

In order to see the applicability of the exceptions to the indictment, we set out so. much of it as is necessary for that purpose.

The indictment charges: “ That the First National Bank of Fort Worth,’ an incorporated company then and there duly and legally established, organized, and existing under and by virtue of the laws of the United States as an incorporated company, did, on the first day of December, a. d. 1877, deliver and intrust to the care and possession of, for storage and safe-keeping, to one Joseph Leonard, the said Leonard being then and there the keeper of a cotton-yard, and doing business as the keeper and bailee of cotton for storage for hire, twenty bales of lint cotton, of the value of fifty dollars per bale, being then and there corporeal personal property of the First National Bank of Fort Worth,’ to be stored and kept safely by the said Leonard for hire, to wit, for the sum of fifty cents per bale, and to be held by said Leonard subject to the order of the First National Bank of Fort Worth,’ on the return of the said Leonard’s receipts for the same, and that the said Joseph Leonard did, by virtue of his said employment of cotton-yard keeper and bailee, and while he was so employed as aforesaid, take into his possession said twenty bales of cotton, to be held and kept as aforesaid, and that the said Joseph Leonard, cotton-yard keeper and bailee as aforesaid, afterwards, to wit, on the second day of December in the year of our Lord one thousand eight hundred and seventy-seven, in said county and State, and before said cotton so delivered to him as aforesaid was by the said the ‘ First National Bank of Fort Worth’ ordered to be delivered to any one, or returned to said bank, and before said cotton was by said bank ordered to be disposed of in any manner, did embezzle, fraudulently misapply, and convert to his own use, without the consent of the said the ‘ First National Bank of Fort Worth,’ the said twenty bales of lint cotton held by him as bailee as aforesaid; contrary to the statute and against,” etc.

It will readily appear from the face of the indictment that it contradicts many of the objections taken to it by the defendant. It is no part of the description of the offence of embezzlement that the indictment should allege, as in theft, that it was taken with the intent to deprive the owner of the property or its value, and to appropriate it to the benefit of the taker.

The indictment alleges the property to have been in the possession of the defendant, which would to some extent excuse the pleader from a more minute description; still we are of opinion it was sufficiently described for the purposes of this prosecution, to apprise the defendant as to what he was charged with. With regard to the objection to the description of the bank, we are of opinion it was not well taken. In Price v. The State, 41 Texas, 215, where the defendant was indicted for theft of a bale of cotton, it was objected that the proper name of the owner, the H. & T. C. R. W.

Company, was not properly set out. The court say: “It was not necessary to set out the charter in the indictment, or to allege it to be a chartered company otherwise than by name.” Citing Archb. Cr. Pr. & Pl. 271, note; The People v. Curling, 1 Johns. 320. In the present case, more was set out in the indictment than was required agreeably to Price’s case. We do not feel called on tó determine what it would be necessary for an indictment to charge in prosecutions before the United States courts, under the general banking law of the United States.

The question with us is what would be sufficient in an indictment for embezzlement under the laws of this State. The indictment in Wise v. The State, 41 Texas, 139, which was held •good by the Supreme Court, was not more specific in some of the particulars here complained of than the indictment before us; but, without, pressing this inquiry further, we are of opinion that the indictment sets o.ut the offence with which the appellant is charged in plain and intelligible language, and is sufficient to support the verdict and judgment ; and that there was no error in overruling the motion to quash it.

With reference to the alleged error in admitting testimony over objection, the first bill of exceptions shows that the prosecution was permitted to prove, over objection, by a certificate of the United States comptroller of the currency, that the “First National Bank of Fort Worth” was authorized to do a banking business under sect. 5169 of the Revised Statutes of the United States. We are of opinion the testimony was admissible; still, if it was unnecessary to set out the act of incorporation, as was said in Price v. The State, it was only necessary to prove the name of the corporation.

Yet, however this may be, the prosecution proved on the trial, by written testimony, the organization, name, and locality of the bank, and without apparent objection; and the objection to the admission of the comptroller’s certificate became immaterial.

The matter mentioned in the second bill of exceptions is about this: The prosecution offered in evidence certain cotton-receipts which recited that the cotton mentioned in the receipts was “ held subject to order of First National Bank on return of this receipt,” which were objected to because the receipts varied from the allegations in the indictment, and because they showed that the cotton was received from another and not from the bank. This objection applied to all the cotton-receipts offered in evidence. As to this bill of exceptions, the court appends the following: “ I, A. J.

Hood, do hereby append, as a part and parcel of this bill of exceptions, this statement, viz.: On the trial, previous to offering to read said cotton-receipts, the State had handed said receipts to witnesses on the stand, — among others, W.

Jeffries,—who by their evidence explained said receipts, showing, among other things, that the words ‘ First National Bank’ meant, and was intended to mean, ‘First National Bank of Fort Worth.’ ” We are of opinion that this explanation removed the objection on the ground of a variance between the allegation and the proofs, and was admissible testimony to explain an apparent ambiguity in the face of the receipts. “As it is a leading rule, in regard to written instruments, that they are to be interpreted according to their subject-matter, it is obvious that paroi or verbal testimony must be resorted to in order to ascertain the nature and qualities of the subject to which the instrument refers.

Evidence which is calculated to explain the subject of an instrument is essentially different in its character from verbal communications respecting it. Whatever, therefore, indicates the nature of the subject, is a just medium of

interpretation of the language and meaning of the parties in relation to it, and is also a just foundation forgiving the instrument an

interpretation, when considered relatively, different from that which it would receive if considered in the abstract,” etc. 1 Greenl. on Ev., sect. 286. But authorities are not wanting to show that the testimony given relative to the meaning of the receipts went to explain and not to contradict the writing, and was legitimate testimony and destroyed the seeming variance. The matter set out in the third bill of exceptions is unimportant at this stage of the proceeding, as it could not have influenced the verdict.

The fourth bill of exceptions sets-out that a witness for the State was asked, on the part of the prosecution; if he knew of any sale of cotton made by the defendant to one Potter about the time the defendant left; which was objected to on the ground that the witness-should be confined to the twenty bales mentioned in the indictment, and because the witness had previously staged that he did not know that the identical twenty bales charged in the indictment were included in any sale made to Potter. The bill of exceptions does not set out what the testimony was, so as to enable us to determine its importance.

The next bill of exceptions states a matter of some importance. The cashier of the bank was asked by the State what contract, if any, the said bank had with defendant in regard to the indorsements on cotton-receipts shown the witness; when the defendant’s counsel objected, unless the witness could testify from his own knowledge concerning the facts of said indorsements.

Thereupon, it appearing to the satisfaction of the court, from previous statements of the witness, that he, witness, as an officer of the bank, had in person prepared and submitted to defendant before the making of the receipt, the full form of said indorsement, and had come to an understanding in person with the defendant, the court overruled the objection, and the witness testified that between the said bank and defendant, in advance, it was fully agreed that said indorsements should be by defendant placed on all the cotton-receipts to be taken up by said bank, when the cotton was stored in defendant’s cotton-yard; to which the defendant excepted.

The testimony abundantly shows the matter of the indorsement on the cotton-receipts, to the effect that the cotton covered by them was to be held by the defendant subject to the order of the bank, on return of the receipts, and that this was well understood by and between the bank officials and the defendant at the time and before the cotton charged to have been embezzled went into the defendant’s possession. What the contract was, was a proper subject of inquiry, and this witness showed he was competent to testify concerning it; and in this we see no error.

Other bills of exceptions were taken to the admission of testimony going to show that other persons had taken cotton away from defendant’s cotton-yard. It seems that this testimony was admitted rather in the prosecution of an inquiry as to where the cotton of the bank had gone to than for any other purpose, and perhaps to show that defendant had disposed of it.

The proof, it seems, does not show that any of those parties obtained any of the cotton for which the bank held the defendant’s receipts, and to one of the bills of exceptions the judge appends this statement: “ The court at the time expressly instructed the jury that this evidence, and all evidence of the kind, was only to be by the jury considered in connection with statements of other witnesses relative to the number of bales actually on the cotton-yard of defendant at the time spoken of as the break-up ’ by the witnesses.” It is in proof that at a certain named time the defendant unceremoniously left Fort Worth, leaving in his cotton-yard a quantity of cotton belonging to different persons, and there was a rush and much excitement over the affair, and it is to this feature the witnesses are understood to refer in speaking of the “ break-up ; ” but it seems not to have been shown that in the scramble over the cotton left on the yard an}'- witness testified who received the missing cotton claimed by the bank, and, except a few bales found in the yard, the balance was not accounted for by the testimony.

The judge appends to another bill of exceptions the following: “The State, on the trial of this cause, avrs not allowed in a single instance to prove against the defendant other acts of embezzlement, the court ruling such proof not allowable.

But the evidence drawn out by defendant’s counsel Avent to show that after defendant left Fort Worth there was at one time on defendant’s cotton-yard one hundred and fifty or one hundred and eighty bales of cotton, and the State offered evidence to show who claimed and got that cotton, and was alloAved by the court, over objections of defendant, to introduce evidence as to whose cotton that one hundred and fifty or one hundred and eighty bales was.

But on theo trial for embezzlement charged, no other acts of embezzlement Avere alloAved by the court to be proAren against defendant.” In these bills of exceptions, with the explanation given by the judge, the seeming objection vanishes, and it does not appear that any material error was committed in the admission of testimony under all the circumstances surrounding the trial.

On the subject of the special charges refused by the court, Ave are of opinion that the general charge presented to the jury the law on the subject to the extent the testimony warranted, and that the court did not commit any material error in refusing tlie charge asked by the defendant’s counsel.

It would be unprofitable consumption of time to undertake to follow and discuss in their order all the objections urged in the motion for a neAv trial and in the assignment of errors, as well as in the able brief and arguments of appellant’s counsel against the charge of the court as to the law of the case, as made by the record before us.

One portion of the charge, however, seems to require more than a passing notice; this seems to be set out in a separate paragraph, as follows : “And again, on the.trial of any. criminal action, when the facts have been proved which constitute the offence, it devolves upon the accused to establish the facts and circumstances on which he relies to excuse or justify the prohibited act or omission.” This charge may not be objectionable, in view of the seeming attempt to prove that the cotton of the bank was on the yard of the defendant at the time he is shown to have left Fort Worth.

But whilst this may be law in every case, we cannot conclude that it is an appropriate instruction to give to the jury in any and every case; and whilst the charge was harmless in the present case, inasmuch as we do not see how the jury could have been misled by it, in view of the testimony and the preceding and succeeding portions of the charge, we deem it unnecessary. The legal principle enunciated would be inapplicable as a charge in an ordinary case where a defendant has pleaded not guilty.

In such a case the general rule is that the burden of proof does not shift from the State to the defendant, and generally it would be error to so charge. This charge was not excepted to. It is further objected to the charge that it assumes as law that embezzlement can be committed by one who has but a qualified and not an absolute right to the ownership of the property charged to have been embezzled. The offence is so near akin to larceny that it must be held that the same kind of ownership which would support an indictment for the one would support an indictment for the. other.

A qualified ownership with the right of control and possession would, it seems, support either. It is urged on the part of the appellant that the bank cannot, under the law, own personal property, or take a mortgage or other lien upon- such property, and therefore cannot hold the cotton in question as a pledge or surety for the payment of money advanced on the faith of it.

We are. not aware of any authority which goes to the extent of permitting one charged with embezzlement of property so situated, or theft of property, or any other kind of fraudulent- and criminal appropriation or disposition of it, to raise the question of ultra vires. To our minds, the Penal Code of .Texas makes no material difference in the protection afforded to the property and property rights of corporations and those-of individuals, and by it all who violate its provisions, when prosecuted criminally before the judicial tribunals of the State, must be treated and judged alike.

Whilst we have not attempted in this opinion to -discuss all the interesting questions presented in argument, yet they have had all the consideration their importance and the earnestness and zeal with which they have been presented required at our hands ; and we are constrained to say that we have not found such material error as would authorize the reversal of the judgment of the District Court.

The material questions of fact on which the guilt of the accused depended seem to have been submitted to the jury under full and appropriate instructions, and we cannot say that the verdict is wanting in a sufficiency of evidence to support it. The judgment is affirmed. Affirmed. [After the delivery of the foregoing opinion affirming the judgment, and within a few days of the conclusion of the term, a motion for a rehearing was filed by the counsel for the appellant, and was supported by a forcible argument upon the controlling features of the case.

Before the adjournment for the term, the motion was considered and overruled, with the announcement" that the pressure of business had precluded the preparation of a written opinion, but, if practicable, one would be delivered at the ensuing Galveston term. Accordingly, at an early day of the Galveston term, 1880, the following opinion on the motion for a rehearing was rendered. — Eeeortérs.] Clark, J. The several points relied on by the appellant, in his motion for rehearing, may be briefly stated as follows : 1.

A portion of the evidence having tended to show that appellant had authority to sell the cotton alleged to have been embezzled, if he did in fact sell the cotton he could not be held guilty of embezzlement of the particular property as charged, and his instruction requested to that effect should have been given ; and the court erred in refusing it, and in instructing the jury that they should acquit in case he sold the cotton without any fraudulent intent. 2.

The court erred in admitting, over'the objections of the defendant, testimony tending to show other acts of embezzlement; and further, in failing to limit the effect of such testimony after it was admitted. 3. The evidence shows that the defendant was a mere mandatory and not a bailee for hire, as alleged. 4. The evidence fails to show that the property was embezzled, and the charge of the court devolved upon the defendant the necessity of showing that it was not embezzled. 5. The evidence shows a fraudulent disposition of mortgaged property, and not embezzlement.

Many, if not most of the refinements incident to the law of embezzlement under both the English and American statutes have been modified by later legislation, and the tendency of the decisions at this day is to assimilate that offence to larceny, in accordance with the plain purpose of the law-making power in its first conception.

The necessity which first gave rise to its enactment was a defect in the law of larceny, which failed to provide any criminal remedy for breaches of various trusts incident to the multiplied affairs of business, and to provide a punishment for fraudulent breaches of trust on the part of agents, servants, clerks, trustees, bailees, and other persons occupying a fiduciary relation, which at common law did not exist. All authorities coincide that the offence is akin to larceny, and belongs to that family, and our statutes have always fixed its punishment the same as larceny.

In a recent prosecution in England, under the statute 24 & 25 Vict., c. 96, sect. 68, it was contended for the prisoner, upon the authority of Rex v. Hassall, 1 Leigh & C. 58, that he could not be convicted, because it was clear the property was never to be returned to the owner, who had intrusted it to the prisoner, and who was therefore not a bailee. But Pollock, C. B., held otherwise in the following terse opinion, which we copy entire : “We are all of opinion that this conviction must be affirmed.

It seems to me that the question is only like what I said it was on Saturday last, viz., whether stealing is stealing.” And Martin, B., remarked, in addition, “Common senseis beginning to prevail.” See 14 Week. Rep. 679. And in a subsequent case in Ohio, involving many of the distinctions set up in this case, the court said : “ There is no more reason why courts should allow themselves to be misled by mere names and shadows in the administration of justice in criminal than in civil cases.” Calkins v. The State, 18 Ohio St. 371. And such is the settled rule enjoined by the Code. Pasc. Dig., art. 1611. 1.

Addressing ourselves to the points presented, we are of opinion that notwithstanding the appellant may have had authority to make a sale of the cotton alleged to have been embezzled, yet if he sold the same with the formed intention to defraud the owner, and to convert it to his own use and benefit, he is as much guilty of embezzlement of the cotton as if he had no authority to make such sale. What is embezzlement ? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted.

There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading; and the appellant in this case was charged in the usual form, that he “ did embezzle, fraudulently misapply, and convert to his own use” the particular property described.

If he sold it with the honest purpose of delivering the proceeds to the owner, and after such sale conceived the fraudulent intention, he would not be guilty of embezzlement of the cotton at least. But if the sale was simply a means to effectuate his fraudulent purpose to convert the property to his own use, — in other words, to steal it, — it is as much

an act of conversion as if he had shipped it clandestinely to a foreign port, and there disposed of it. This distinction is not unsupported by authority, and we are referred to nbne of a contrary effect. In United States v. Sander, 6 McLean, 598, the defendant was indicted in two counts, for opening a letter of another and with embezzlement of the letter, and set up in defence an agency.

The court instructed the jury to determine the fact of agency, and if they found that the defendant received the letter without any criminal purpose at the time, they should acquit; but if the letter was obtained from the post-office with criminal intent, it was larceny, although the defendant may have had the previous authority of the person to take her letters from the office. See also Archb. Cr. Pr. & Pl. (6th ed.) 460-463, note.

It is urged with much ability and earnestness that this view obliterates the fundamental doctrine in criminal jurisprudence, that, before there is crime, an unlawful act must unite with the unlawful intent; and we are referred to Mr. Bishop in support of the position. That such is the general doctrine no one can question; but it has its exceptions, like almost every other general rule.

The same author says: “When a particular thing, of a nature to be embezzled, has come into the hands of the servant, he is in reason to be held guilty of embezzling the thing, in all circumstances which show a malicious intent to deprive the master of it. Suppose, for instance, he has the right to mix it with his own property, and does mix it, intending at the same time to embezzle what he thus mixes, why let him escape on the ground that his act itself was alone no violation of duty, but only his act when coupled with his intent?

Many criminal acts are criminal only because of the intent with which they are done.” 2 Bishop’s Cr. Proc., sect. 369. The charge of the court presented with accuracy the exact distinction applicable to the facts in proof, and the instruction requested and refused was not the law of the case. 2.

The evidence relating to other acts of embezzlement, which was objected to by appellant, was introduced to meet an issue raised by the defence, to wit, that the cotton alleged to have been -embezzled was in fact left upon appellant’s cotton-yard at the time he absconded, and that the necessary and reasonable presumption was that other parties holding storage-receipts for cotton in that yard had gone upon the yard and taken their own cotton, and this particular cotton as well.

To anticipate or rebut this presumption, the State introduced certain parties who held these receipts, one of whom testified that he held receipts for fifty-one bales and got only sixteen bales, which were all that was left upon the yard ; and the other testified that he held receipts for eleven bales and got none. This evidence was restricted by the court below to the point above indicated, but it was admissible without such restriction. Rex v. Richardson, 2 Fost. & Fin. 343 ; Roscoe’s Cr. Ev. 86, 88, 94 ; 2 Russ. on Cr. 777 ; 1 Greenl. on Ev., sect. 53.

If it were necessary to a determination of the question, which is not the case, it might be assumed, from one of the theories of the defence, that these other fraudulent acts were contemporaneous with and parts and- parcels of the identical transaction for which the defendant was on trial. The rule applicable to this case is found in The Commonwealth v. Tuckerman, 10 Gray, 199, and not in The Commonwealth v. Shepard, 1 Allen, 575. 3. For a proper disposition of the third ground of the motion, it suffices to say that the appellant was estopped by his receipts from claiming that he was not a bailee for hire.

Ex parte Hedley, 31 Cal. 113; 2 Bishop’s Cr. Law, sect. 367. Apart from this, there was evidence tending to show a special contract between the appellant and the bank that the former should receive a certain sum for storage of each bale, which constituted a charge upon the cotton, payable when the cotton was delivered. The jury were authorized to believe this, and the State was not confined to showing that the storage-fee was the exact sum alleged, the real issue being whether the appellant was a bailee for hire or not. Henry Smith v. The State, ante, p. 382. This the record conclusively shows. 4.

The offence of embezzlement is invested with no such favor or peculiarities under the law as to necessitate its proof by express and positive testimony. In prosecutions for this offence, it is only necessary that the evidence should satisfy the minds of the jury, beyond a reasonable doubt, that the defendant is guilty of the act charged. This may be shown in any of the modes designated in the general law of evidence. The facts essential to be established in this case were: 1. That the First National Bank of Fort Worth was the owner of the cotton ; 2.

That it deposited the cotton with defendant as a bailee for hire, and that the defendant received it as such, charged with the duty of holding it for the owner, and subject to its order; 3. That, pending the existence of this relation, he fraudulently appropriated it to his own use. We are of opinion the evidence establishes these propositions beyond a reasonable doubt. There can be no reasonable question as to the two first named, and the circumstances in evidence established with unerring certainty the last.

It was not necessary for the State to prove a demand for the cotton, because the defendant absconded, and, from the evidence, left ho authorized agent upon whom any demand could have been made. If this were not so, a demand was not necessary in any event. The Commonwealth v. Tuckerman, 10 Gray, 173. The fraudulent appropriation is to be inferred from facts; and flight, insolvency, concealment, or evasion, form strong circumstantial proofs of guilt. , Whart. Cr. Law (7th ed.), sect. 1927 ; The State v. Leonard, 6 Coldw: 307 ; Rex v. Williams, 7 Car. & P. 388 (32 Eng. Com. Law, 644).

Nor do we deem the charge of the court subject to the criticism made by counsel. The two statutes, one in the Code of Criminal Procedure, and the other in the Penal Code, when taken and construed together, are not in conflict with each other nor with any decision in our reports. A defendant in a criminal case is presumed to be innocent until his guilt is established by legal evidence ; and in case of reasonable doubt as to his guilt, he is entitled to be acquitted (Pasc.

Dig., art. 3105) ; but on the trial of any criminal action, when the facts have been proved which constitute the offence, it devolves upon the accused to establish the facts or circumstances on which he relies to excuse or justify the prohibited act or omission. Pasc. Dig., art. 1655. In other words, the law starts the trial with the presumption of innocence in favor of the prisoner, which continues until a verdict of guilty; but the State is not called upon to do more than'to prove its own case. It is only required to prove the facts which constitute the offence, and rest its case.

If there be no further evidence, the case goes to the jury with the evidence for the State, which must be tested by them, on their retirement, by legal rules as to its sufficiency, including the rule as to reasonable doubt. If evidence be introduced by the defendant tending to establish facts or circumstances upon which he may rely to excuse or justify the prohibited act or omission, then the question of his guilt is to be decided on the whole evidence, without pausing to inquire whether it was introduced by him or by the State.

The proposition embodied in art. 1655 was frequently enunciated as law by our highest court before the adoption of the Codes. Henderson v. The State, 12 Texas, 525 ; Belverman v. The State, 16 Texas, 130 ; and in Hall v. The State, decided at Galveston in 1875, but never reported. These cases, together with the statute, were reviewed in connection with the decisions of other States, and recognized as substantially the law.

This case of Hall is the leading case upon which many, later decisions have been based, and it is unfortunate for the profession, and the proper administration of criminal law, that its publication has been so long delayed. The charge objected to in that case is totally dissimilar to the one at bar.

The defendant was indicted for assault with .intent to murder, and the court instructed the jury that “the burden of proof is on the defendant to show the facts and circumstances which would excuse or justify the shooting; that, the shooting being established, the burden of proof is upon the defendant to show the sudden passion or adequate cause which would reduce the offence below the grade of an assault with intent to murder.” This portion of the charge was objected to because it relieved the State from the necessity of proving that the shooting was unlawful, and done with malice aforethought express or implied, and threw upon the defendant the burden of proving his innocence, instead of the burden of meeting a prima facie case of guilt as charged.

The court held that the charge, as a whole, did not infract the law, though perhaps the jury may have been misled by the context. But they expressly declined to rest the decision upon this ground, and the judgment was reversed for another error.

And in the following quotation they recognize the principle announced in the charge and complained of in this case : “ The principle in all these cases [numerous cases in this and other States] is, that although the defendant must establish the facts on which he relies to excuse or justify his acts, when such excuse or justification does not arise out of the evidence against him, vet the burden of proof is not on him in the sense it is understood to rest on a defendant in a civil suit.” Subsequent decisions have in ho manner qualified this case. Perry v. The State, 44 Texas, 473 ; Brown v. The State, 4 Texas Ct.

App. 275 ; Ake v. The State, 6 Texas Ct. App. 398. Without undertaking to enumerate cases wherein such an instruction might be objectionable, we are of opinion that this case not only justified but would seem to have required it, as the. whereabouts and disposition of the cotton were wholly within the knowledge of appellant; and after the establishment of the prima facie case of guilt as above indicated,, it peculiarly devolved upon him to establish his excuse, or justification. 5.

The distinction attempted- to be drawn in the fifth ground of- the. motion, to wit, that the defendant, if guilty at all, was not -guilty of embezzlement, has been often attempted and has as often failed. Calkins v. The State, 18 Ohio St. 366 ; Hutchinson v. The Commonwealth, 82 Pa. St. 472. The latter of these cases' also decides that the title to the cotton passed by delivery of the receipts. But authorities are hardly necessary upon that point. After a patient hearing and consideration of the points presented, we find no reason for disturbing the judgment, and the motion for rehearing is overruled.

Rehearing refused.