Larkin v. State

On Appellant’s Second Motion for Rehearing

Due to the difference of opinion among the members of this Court as to the sufficiency of the evidence to support the conviction, we have heretofore failed to write upon appellant’s 'bill of exception complaining of the argument of the prosecutor.

In order to properly understand the argument complained of -therein, it is necessary to review certain portions of the evidence. From the testimony of Mr. Day, one of the school trustees, we find the following :

“At the time the Board paid Mr. Larkin $6,500.00 he had not submitted any report of the expenses; I think his excuse for not doing so was that he did not have the bills together, or something, I really don’t know what his excuse was. From November until May or June of this year I had various occasions to see Mr. Larkin in Board 'meetings; I discussed with Mr. Larkin the matter of making an accounting or report for what stuff he sold and what he got for it and he never at any time made an accounting to the Board, other than to tell us in round figures what he had been out on it; he never sub-

mitted those round figures in writing and he has not up to this time.” and further:

“I don’t recollect Larkin ever making a report of the disposition of any of the oak flooring; I don’t remember of, his making any report to me of the selling of any of the oak flooring prior to the time of his arrest.”

and further:

“I asked him for an accounting so that we would know how we made out on the job, but he-always had some excuse.”

From the testimony of Mr. Hill, another trustee, we note the following:

“Up to this day Mr. Larkin has never given us the number of loads he hauled; we had an agreement with Mr. Larkin to employ the labor to wreck the buildings, tear them down. Mr. Larkin has never up to this date given us the number of hours of labor employed in this connection, but he told us he had those records. He told Mr. Bateman he had the records -but he wasn’t going to produce them until the proper time; he was going to give them to- his lawyer, I believe, was the statement that was made. From* November when he reported that the buildings were wrecked up until the time Mr. Larkin was arrested, during that time we had asked him to give us a report. Mr. Bateman, Mr. Larkin and I were present and Mr. Bateman asked him about the report, if it was ready to turn in and I believe that’s when he told us he had the report 'but he was going to turn 'it over to the lawyer at the proper time. After this thing was stirred up the defendant here, Mr. Larkin, told us he had so-me records but he was presenting them to his own lawyer and not to us.”

and further:

“Up to this time the defendant has-never made any report of what he used that check for, in my presence.”

and further:

“In a conversation Mr. Larkin did mention that he sold so and so but I never saw any written itimized account *143 of the deal at. all, myself^ we never did get any itemized account of the number of loads hauled, the number of men employed, and what he paid them or what he got for the boiler.”

and again:

“From the time I was elected Secretary he made no report and I did not find any report in the Minutes, when I was made Secretary.”

From the testimony of Mr. Bateman, President of the School Board, we find the following:

“Mr. Larkin never submitted a written report as to the number of trips; if he ever told me how many trips there were it was oral; he never made a written report or gave a receipt of any kind and he has not to this date. Mr. Larkin has not made a report to me as to the amount of money he paid for labor, nor has he made a written itemized report of the sale of any window, door or anything of the kind; he made an oral report on a refrigerator machine and boiler, these are the only two items; I don’t recall that he made any report on windows; whatever reports he made was by piecemeal or an item or two at a time. Mr. Larkin has made no report in writing of the number of 'loads he hauled or what he charged.

I have access to the books by virtue of being President of the School Board and Mr. Larkin has turned in no report of the sale of anything.”

and further:

“ * * * and he was supposed to make an accounting of it and up to this time he has never made an accounting of it nor what he did with the money.”

.and further:

“I said Larkin never refused to make an accounting but he has never made one; he has always said he would. When Mr. Hill and I were talking to Larkin about (it) in June he didn’t give us any of the records. The only records I got was on the moving of the buildings. We employed attorneys and requested he make an accounting. I said that Larkin hadn’t refused to make an accounting but he didn’t make an accounting.”

and further:

“From November of ’48 until October ’49 the defendant never did make an accounting and never has to this date.”

It is with the state of the record in mind that we approach the question of argument. The bill recites that appellant’s counsel, in his argument to the jury said:

“The school board has made no accounting and no report of the money spent, nor the money received. I say that he doesn’t owe the school district anything; in fact, he has overpaid the school; there is the $6,000.00 they got for lumber; there is the $2,500.00 that he paid them out of his pocket; why don’t the State of Texas put their cards on the table and let you see that he does not owe the school anything.”

In his closing argument, the District Attorney said:

“E. O. Larkin has not reported to this day what he has done with that money.” “Speaking of reports, here it is the 29th day of November, and still no report from Larkin.” “In answer to Mr. Scarborough’s question ‘Why didn’t we bring the cards and put them on the table.’ E. O. Larkin is the only man that has the cards. E. O. Larkin is the only man that knows. E. O. Lar-kin is the only man that could bring us that information from his records. Why didn’t E. O. Larkin make a report. Mr. Larkin knew that if he made a report that it would show that he was guilty of embezzlement.”

The objection was that the above constituted a reference to the appellant’s failure to testify. We find, first,'that the argument is based on the evidence, and second, that it was made in answer to argument of appellant’s counsel.

Finding no error in the bill, appellant’s second motion for rehearing is overruled.