McMorries v. State

DAVIDSON, Judge,

dissenting.

There are so many reasons why this conviction should not be affirmed, I hardly know where to begin my dissent. I will start with the indictment which, upon its face, is fundamentally and fatally defective.

The indictment upon which this conviction rests purports to charge felony theft, under Art. 1410, Vernon’s P.C. In order that there might be no question, I copy the indictment in full, as follows:

“IN THE NAME AND BY AUTHORITY OF THE STATE OF TEXAS:

“THE GRAND JURORS, for the County of Martin, State aforesaid, duly organized as such at the June Term, A. D. 1954, of the District Court of the 118th Judicial District for said County, upon their oaths in said Court present that James Mc-Morries on or about the 26th day of May, A. D. 1954, and anterior to the presentment of this Indictment, in the County of *613 Martin and State of Texas, did then and there unlawfully and fraudulently take $175.40 in lawful money of the United States, of the value of $175.40, the same being the corporeal personal property of the Trustees for Grady Consolidated Independent School District No. 905, a body politic and corporate in law, same being generally known as Grady Consolidated Elementary School District, from the possession of the said school district, without the consent of the said school district, with the intent to deprive the said school district of the value thereof, and with the intent to appropriate it to the use and benefit of him, the said James McMorries.”

Now what does that indictment charge? It charges that appellant stole $175.40 by fraudulently taking that sum of money from the possession of the Grady Consolidated Independent School District which was the “corporeal personal property of the Trustees” for that district, without the consent of the district.

The trustees were alleged to be the owners of the money which was stolen from the school district without the consent of the school district. There is no allegation that the ownershro of the money by the trustees was for the school district, nor is there an allegation that the possession of the money by the school district was for the owners thereof. The school district was never alleged to be the owner of the money.

As the indictment reads, then, it alleges that appellant stole the money from the school district which belonged to the trustees of the district. In any event, there is an entire absence of any allegation that the money was taken without the consent of the owner.

Such an indictment is fatally defective because it omits that essential element of the crime of theft. Branch’s P.C., Sec. 2451.

If the trustees owned the money as alleged, then, to be valid, the indictment must allege that it was taken without the consent of the trustees. If the money belonged to and was taken from the school district, there would have to be some allegation to that effect.

The indictment, upon its face, does not charge the crime of theft. The judgment of conviction, therefore, does not rest upon a valid indictment.

*614 The state claims that the crime of theft, as charged in the indictment, was committed by appellant because of facts showing that he, as county judge and ex officio county school superintendent, drew and signed a check for $175.40, as county superintendent, against the funds of the Grady Independent School District on deposit with the First National Bank of Stanton, Texas, the depository of the funds of the county and school district.

That check was made payable and delivered by appellant to a fixture company in payment of his personal and pre-existing indebtedness in that amount to that company.

The depository bank paid the check and charged it against the funds of the school district.

It is by these facts the state claims that appellant has been here legally convicted of the crime of theft by false pretext under the indictment in this case.

Before looking to the legal effect of the claimed facts, it becomes material to ascertain what the state proved or did not prove to support its case.

Firstly: The indictment alleged that appellant stole $175.40 “in lawful money of the United States,” which meant legal tender coins or legal tender currency of the United States (Cousins v. State, 154 Texas Cr. Rep. 5 , 224 S.W. 2d 260 ). There is no proof, here, that appellant stole money, as alleged. The facts wholly fail to support that allegation of the indictment.

Secondly: The indictment charged the taking of “corporeal personal property.” The property stolen was incorporeal and intangible, being a fund on deposit with a bank, or bank credit. In Bourland v. State, 133 Texas Cr. Rep. 544 , 112 S.W. 2d 720 , it was held that stock in a corporation was not corporeal personal property and not subject to theft. Equally so would be a bank deposit. See Mayse v. State, 156 Texas Cr. Rep. 360 , 242 S.W. 2d 371 , holding that a check is not money.

The proof does not meet the allegation of the indictment that corporeal personal property was stolen.

The foregoing errors are sufficient to require the reversal of *615 this case. But these errors are insignificant in comparison with the following:

The check by which it is claimed the theft was consummated was introduced in evidence by the state, and reads as follows:

“STATE’S EXHIBIT NO. 1.

No. 1349

“THE FIRST NATIONAL BANK

“STANTON, TEXAS 5-26 1954 88-722

1123

“PAY TO THE ORDER OF S. W. F. CO. $175.40 “One Hundred Seventy Five and 40/100 ----Dollars

“This check is in full settlement of account as shown hereon. Acceptance by endorsement constitutes receipt in full.

CHARGE TO LOCAL FUND GRADY CONSOLIDATED ELEMENTARY OF DIST. NO. 905.

“MARTIN COUNTY SCHOOL FUND

“By (Signed) James McMorries County, Supt.”

“Written at the end of said check: ‘Merchandise for school’

“In the upper lefthand corner in pencil: ‘Western Cleaners’

“ENDORSED: ‘Pay to the order of MERCANTILA NATIONAL BANK AT DALLAS, For Deposit Only SOUTHWEST FIXTURE CO. INC.’ ”

Attached to the check when it was received by the fixture company was the following notation:

“STATE’S EXHIBIT NO. 3

“ T have let one of my schools have these fixtures, please credit my account, I am sorry for this delay.

“ ‘(Signed) James McMorries’”

Upon its face, the check shows to be an order from the Martin County School Fund, acting by and through the county superintendent, to the First National Bank of Stanton, Texas, to pay $175.40 from the funds of the Martin County School Fund and charge that amount to the “Local Fund Grady Consolidated Elementary of Dist. No. 905.” So the practical effect of the check, then, is that Martin County School Fund ordered the bank to pay $175.40 from its funds on deposit with the bank. *616 In paying that check, the bank did so from funds of the Martin County School Fund.

Where, or how, or from whom Martin County School Fund was to be reimbursed for the payment is entirely secondary and a matter affecting only the Martin County School Fund and its funds. Certainly the check was not an order from the school district, or any one acting or purporting to act for it, to the bank to pay any money from funds of the school district on deposit with the bank.

Obviously, therefore, the check was paid from the funds of the Martin County School Fund. If appellant stole anything by the check it was from the Martin County School Fund.

This brings us to a consideration of the question as to whether the check could lawfully authorize the payment of funds belonging to the Martin County School Fund or of the school district.

Being the depository, the bank was charged with notice that a county school superintendent has no authority to draw from the depository funds belonging to a county or school district. Custom or usage cannot change the law or confer upon the county superintendent authority to withdraw funds from a county or school depository. If the school district had $175.40 of its funds with the bank as depository and it is only by reason of the check here involved that it has lost that fund, then that amount is still in the bank, for this check could not have the legal effect of withdrawing that fund. Reynolds v. State, 130 Texas Cr. Rep. 78 , 92 S.W. 2d 458 ; State v. Tyler County State Bank, et al, 277 S.W. 625 ; New Amsterdam Casualty Co. v. First National Bank of Gilmer, Texas, et al, 134 S.W. 2d 470 .

The purpose of the depository law and the requirements necessary to withdraw public funds from a depository was to prevent the occurrence of instances such as here presented— that is, the honoring of checks, drafts, or vouchers drawn against such funds without authority and compliance with the conditions precedent to a valid withdrawal.

Appellant has not stolen or converted to his own use any money or funds of the school district.

I dissent from the affirmance of his conviction.