The opinion
DAVIDSON, Judge,
(dissenting).
My brethren overrule appellant’s motion for rehearing, without written opinion .
To that conclusion, as also the original affirmance of this case, I do not agree.
The jury found appellant guilty of the crime of embezzlement.
If that conclusion be wrong, the blame therefor must rest with the jury, for they and they alone were the exclusive judges of the facts proved and of the credibility of the witnesses. It was for the jury to apply the facts to the law as submitted to them by the trial court. The finding of the jury is of no force or effect if there be no facts to support it. The jury can not by its verdict make or supply the facts.
It is the duty of the courts — especially this court — to determine whether the facts authorize the jury’s conclusion.
The question of paramount importance, then, is whether the facts warranted the jury’s finding that appellant was guilty of embezzlement. Of necessity, it must be known what constitutes the crime of embezzlement and the essential elements threof. Art. 1534, P.C., furnishes the answer, and reads as follows:
“If any officer, agent, clerk, employe, or attorney at law or in fact, of any incorporated company or institution, or any clerk, agent, attorney at law or in fact, servant or employe of any *364 private person, copartnership or joint stock association, or any consignee or bailee of money or property, shall embezzle, fraudulently misapply or convert to his own use, without the consent of his principal or employer, any money or property of such principal or employer which may have come into his possession or be under his care by virtue of such office, agency or employment, he shall be punished in the same manner as if he had committed a theft of such money or property.”
It is clear from that statute that there are four elements necessary to be established. These are:
(1) that the accused was the agent of the corporation and, as such agent, was charged with the duty of receiving the money with which he was charged with embezzling
(2) that the accused did receive the money;
(3) that he received the money by virtue of his agency, and
(4) that he embezzled and converted to his own use the money so received.
Such is the construction this court and its predecessors have placed upon the statute for nearly a hundred years. See Note 1 of Art. 1534, Vernon’s P.C., for attesting authorities, including the case of Fellers v. State, 138 Texas Cr. Rep. 307 , 136 S.W. 2d 217 .
In the indictment the state charged that appellant was guilty of embezzlement under the following allegation that he
“* * * was an officer, to wit: president, agent, servant and employee of ICT Corporation, Dallas, Texas, a corporation duly incorporated under the laws of the State of Texas, and the said Ben Jack Cage did then and there fraudulently embezzle, misapply and convert to his own use, without the consent of the said ICT Corporation certain money belonging to the said ICT Corporation, Dallas, Texas, a corporation, to wit, one hundred thousand dollars which is of the aggregate value of over fifty dollars, which said money had come into the possession of, and was then and there under the care of, the said Ben Jack-Cage by virtue of such employment as such officer, agent, servant, and employee, as aforesaid * * (Emphasis, supplied.)
*365 I have supplied the emphasis in order to call express attention to the fact that the instant indictment alleged the four elements heretofore set out and that the charge was the embezzlement of money.
There was no allegation in the indictment charging appellant with embezzling any property, stocks, credits, or bank balances belonging to the ICT Corporation.
Having based its case upon the charge of embezzling money, the state was of necessity required to prove that fact as alleged.
When the trial court, at the close of the evidence, came on to charge the jury and give them the law governing this case he recognized it was necessary, in order to convict, that the jury find the four elements above mentioned, and, in obedience thereto, instructed the jury that before they could or would be authorized to convict they were required to find from the evidence beyond a reasonable doubt
(1) that the defendant was the agent of the ICT Corporation, as alleged, and by the terms of his employment was charged with receiving the money from his principal;
(2) that he did so receive the money belonging to his principal;
(3) that he received it in the course of his employment; and
(4) that he embezzled, misapplied, or converted it to his own use without the consent of his principal or employer.
Note, again, the use of the word “money,” which, as the trial court defined and told the jury.
“* * * inciudes, besides gold, silver, copper or other coins, bank bills, government notes and other circulating medium current as money.”
Such is the statutory definition. Art. 1544, P.C.
Under that charge, the jury found appellant guilty of embezzlement, as charged in the indictment. The trial court approved that finding of the jury. My brethren likewise approve that finding.
*366 With that conclusion I do not agree, and respectfully submit that the facts in evidence do not warrant such conclusion.
Here are the facts upon which this conviction rests:
According to the witness Knoll, appellant was vice-president of the ICT Corporation.
The ICT Corporation had an account with the Mercantile National Bank of Dallas, Texas. In order to draw funds upon that account the signature of at least two persons was required on the check. Appellant could act as one of those signers. He could not, upon his lone signature, draw upon those funds.
On the 15th day of June, 1955, the Missouri Union Corporation, a Missouri corporation domiciled at Kansas City, Missouri, drew a draft upon appellant, Ben Jack Cage, c/o Jack Cage & Co., for the sum- of $100,000 through the Mercantile National Bank, Dallas, Texas. That draft arrived in due time at said, bank, and on June 22, 1955, according to the testimony of the witness Knoll, secretary-treasurer of the ICT Corporation, he (Knoll) paid the draft by delivering to the Mercantile National Bank a check payable to the bank for $100,000 against the funds of the ICT Corporation in that bank, signed by him and one Don Buchholz.
Knoll said that his authority for issuing the check was given him by a person with whom he had a long distance telephone conversation and whom he identified as and whose voice he recognized as that of the appellant, who told him to pay the draft from the funds of the ICT Corporation.
Knoll entered the $100,000 item as and carried it upon the books of the ICT Corporation as an account receivable. He admitted that he drew the check solely because of the telephone conversation and that he consulted with no other official of the ICT Corporation relative thereto.
The $100,000 was remitted to the Missouri Union Corporation in Kansas City, Missouri, and was deposited to the credit of that corporation in a Kansas City bank.
It-was' this $100,000 that appellant was charged with embezzling and for which he has been convicted.
Welshans, president of the Missouri Union Corporation, *367 testified that for the $100,000 the Missouri Union Corporation issued 20,000 shares of its common stock to three individuals designated by the appellant. Those three persons did not testify in the case. Welshans testified that the transaction whereby the Missouri Union Corporation received the $100,000 was completed with the issuance of the stock.
The effect of Welshans’ testimony was that the Missouri Union Corporation sold the 20,000 shares of stock for the $100,000.
At this point in the development of the state’s case the testimony takes two divergent trends. I am unable to ascertain therefrom whether the state is contending that appellant converted the 20,000 shares of stock to his own use or whether the state is contending that appellant converted $96,000 of the $100,000 from the Missouri Union Corporation. Whether one contention is tenable as against the other is immaterial, for the proof fails to establish either.
Looking, first, to what happened to the $100,000 after it went into the bank account of the Missouri Union Corporation in the State of Missouri:
According to the witness Welshans, about three days after the money reached the bank appellant withdrew the sum of $96,000 therefrom, by check, in the name of the Missouri Union Corporation, signed by him.
Appellant was a director and chairman of the board of the Missouri Union Corporation, which fact is difficult to understand in view of Welshans’ testimony that appellant never owned a share of stock in the Missouri Union Corporation.
The cancelled $96,000 check is not a part of this record. The evidence shows that it was payable to the Oxford Corporation, a Nevada corporation.
On January 27, 1956, or about six months after the above transaction and after appellant had severed his connection with the ICT Corporation — which the witness Knoll testified occurred about thirty days prior to January 27, 1956, and which was over a year before this prosecution was instituted — the Oxford Corporation paid the Missouri Union Corporation $98,268, which represented the principal sum of $96,000 and $2,268 in addition.
*368 Here is the way Welshans described the transaction:
“Actually, Missouri Union Corporation as a corporate entity bowed out of that transaction, if you use that term, on January 27, 1956, when it drew a draft in the amount of ninety-eight thousand, two hundred and sixty-eight dollars on the Oxford Corporation through Manufacturer’s Trust Company in New York City.”
So a year before this prosecution was instituted, the Missouri. Union Corporation had the $100,000 it originally received and $2,268 profit.
Surely it can not be said that appellant converted the $100,000 or any part thereof. Yet that is the offense for which he stands convicted.
Now what happened to the 20,000 shares of stock?
On February 1, 1956, after the payment of the $98,268 above mentioned, the Oxford Corporation executed a note in the sum of $100,000, payable to the Missouri Union Finance Company, due on demand or six months thereafter.
The Missouri Union Finance Company was a subsidiary of the Missouri Union Corporation. It was not the Missouri Union Corporation. It was a different corporation.
To secure the payment of that note the appellant pledged the 20,000 shares of stock which the Missouri Union Corporation had originally issued. Whether appellant was the owner of the stock the record does not show, nor is there any evidence that at the time he executed the collateral pledge agreement he was the owner of the shares of stock or that they had been endorsed to him.
The Oxford Corporation made two $20,000 payments, or a total of $40,000, on that $100,000 note to the Missouri Union Finance Company, within a period of two or three months.
Approximately a year thereafter, the Missouri Union Finance Company settled, discharged, and cancelled the Oxford Corporation note by accepting the 20,000 shares, which had been pledged to secure the payment of the note, and by paying $30,000 in cash to the Oxford Corporation. Thus, for the $100,-000 represented in the note of the Oxford Corporation to the *369 Missouri Union Finance Company, that company realized $10,000 in cash and the 20,000 shares of stock in the Missouri Union Corporation.
The 20,000 shares of stock thereby went into the possession of the Missouri Union Finance Company, intact and as originally issued by the Missouri Union Corporation.
Appellant got none of that stock. As heretofore stated, Wel-shans testified that
“* * * there never was a share of the stock in this [Missouri Union] Corporation issued to Ben Jack Cage.”
Some four days after the Missouri Union Finance Company acquired the 20,000 shares of stock, or on July 1, 1956, the ICT Corporation and the Jack Cage Company, a Texas corporation, entered into and executed a sales or exchange agreement whereby the ICT Corporation did “quit claim unto Jack Cage and Company all of ICT Corporation’s rights, titles, interests, claims and demands in and to the following described properties * * *.”
Among the properties described are the following:
“All of the claims, rights and choses in action of ICT Corporation against Missouri Union Corporation, a Missouri corporation, for the 100,000 [sic] paid or advanced to Missouri Union Corporation by ICT Corporation on or about June 22, 1955.”
In return, Jack Cage and Company transferred to the ICT Corporation certain properties listed in the agreement.
That agreement was executed in the name of the ICT Corporation by J. A. McFaddin, president, and attested by Marie Myers, secretary-treasurer, and was put in evidence by the state.
The instrument speaks for itself. No signer thereto or any one officially connected with the ICT Corporation challenged its correctness or that the ICT Corporation was not fully paid or compensated for its $100,000 by the property it received in exchange therefor.
The indictment in this case was returned and filed on May 29, 1957, which was approximately eleven months after the ICT Corporation had transferred by quitclaim to another cor *370 poration all its interest in the $100,000 it had paid to the Missouri Union Corporation.
The testimony regarding that transaction therefore shows that the ICT Corporation was fully compensated, long before this prosecution was instituted, for the $100,000 it had advanced to the Missouri Union Corporation and that the Missouri Union Corporation owed it nothing when this prosecution was instituted.
That evidence tends strongly to show that the ICT Corporation parted with its $100,000 to the Missouri Union Corporation voluntarily and that neither appellant nor anyone else embezzled that money from the ICT Corporation.
The most significent feature of that testimony, however, is that it shows consent on the part of the ICT Corporation to the transaction rather than that the $100,000 was paid to the Missouri Union Corporation without its consent.
The foregoing are the facts upon which this conviction rests.
In analyzing and applying these facts to this conviction it is vastly more important to notice the absence of evidence than to note what was proven.
At the outset, let it be understood that I am not passing upon whether the appellant is guilty of stealing from the ICT. Corporation or its stockholders, or whether he is guilty of wrecking that corporation, or whether he is a thief or criminal, generally, and ought to be sent to the penitentiary on general principles.
The only matter before this court is whether the facts here presented show that appellant is guilty of embezzling $100,000 in money from the ICT Corporation and converting it to his own use, and that is all I am passing on.
As I have pointed out, it was necessary for the state to prove that the vice-president of the ICT Corporation was charged with the duty of receiving money for and on behalf of the ICT Corporation.
There is not a line of evidence here that shows what the duties of the vice-president of the ICT Corporation were or *371 that it was the duty of the vice-president to receive money in behalf of that corporation.
Yet that is the first essential element of the offense of embezzlement that the state was required to show. This it has wholly failed to do.
The state was also and in addition required to prove the second and third essentials heretofore set out, which are that this appellant did receive the $100,000 here involved, by virtue of the fact that he was vice-president of the ICT Corporation. There is not a line of testimony in this case that so shows. All the facts are to the exact contrary.
The $100,000 was in the actual possession of the Mercantile National Bank. It was in the constructive possession only of those persons who were authorized to exercise control over and to check it out of the bank. Appellant was not authorized to draw a check against that money, either individually or as vice-president of the corporation. The fact that it was necessary for appellant to call upon Knoll and Buchholz to sign the check shows that he could not do so. If appellant had been in either the actual or the constructive possession of the money, he could have exercised that possession and checked out the money.
But mere possession of the $100,000 is not sufficient to show embezzlement. The state was required to show that the $100,000 came into the possession of the appellant as vice-president of the corporation, under the duty imposed upon that officer to receive it. There is not a line of testimony that so shows.
No officer of the bank or any other person testified as to the source of the $100,000 which was in the bank. All that the testimony shows is that there was in the bank to the credit of the ICT Corporation that amount of money.
There is an utter lack of evidence that appellant ever at any time had possession of the $100,000 in the bank or that he received it as vice-president of the ICT Corporation or that any duty was imposed upon the office of vice-president to receive the money.
It is, to me, inconceivable to say that the state has here met the burden of establishing by the evidence the first three of the four elements of the crime of embezzlement heretofore set out. But for the sake of argument, let it be said that if the state *372 did establish those three elements, the completed crime of embezzlement still has not been shown or established.
There remains to be established the fourth essential element, which is that appellant embezzled and converted to his own use the $100,000 in money. There is not a line of evidence in this case that the appellant converted that sum of money to his own use.
Conversion of the property by the accused to his own use must be shown in order for the crime of embezzlement to exist. Lawshe v. State, 57 Texas Cr. Rep. 32 , 121 S.W. 865 ; Sherman v. State, 124 Texas Cr. Rep. 205 , 61 S.W. 2d 488 .
Here is the law as expressed in 18 Am. Jur., Embezzlement, Sec. 12, page 577:
“The principle is well established that an essential element of embezzlement is the conversion of the property lawfully in the possession of the accused. If the property is in the actual or constructive possession of the owner, the offense is larceny. * * * Generally, it may be said that mere custody of property as distinguished from possession does not suffice to support an accusation of embezzlement. * * * The reason for this rule is that if a person gains possession of property so as to constitute only a bare charge or custody, such custody does not divest the possession from the true owner and the appropriation of the property under such circumstances amounts to larceny, and not embezzlement.”
The case of Smith v. State, 53 Texas Cr. Rep. 117 , 109 S.W. 118 , is cited as supporting the last statement.
The common law of larceny is the same as “theft” under Texas law.
The indictment in this case, in obedience to that requirement, alleged that appellant did, in Dallas County, Texas, “fraudulently embezzle, misapply and convert to his own use” the $100,000.
Under that allegation, the state was under the burden of showing that appellant converted, in Dallas County, Texas, the $100,000 to his own use.
There is not a line of testimony that appellant converted to *373 his own use that sum of money or any part thereof. How could he have converted it to his own use when all the evidence shows that the Missouri Union Corporation received that sum of money and, so far as this record is concerned, still has it? Moreover, under the testimony that appellant never owned any stock in the Missouri Union Corporation he could not have even indirectly benefited therefrom.
So the state has utterly failed to prove conversion of the $100,000 as it alleged and charged. But, here again let it be said for the sake of argument that if some time during the trial the state did prove that the appellant converted to his own use the money or the shares of stock purchased therewith or that he received some benefit therefrom, such by no means proves embezzlement.
If everything else I have referred to heretofore were excluded from this record or treated as having been proven, yet there remains one insurmountable obstacle to a conviction in this case which the state can not and does not attempt to overcome or explain.
I call attention to the fact that if there be any evidence of conversion in this case, such occurred only within the State of Missouri and not in the State of Texas.
All the evidence, however, tending to show conversion by appellant of the $100,000, or the stock of the Missouri Union Corporation issued thereafter, occurred in the State of Missouri. If appellant converted any part of the money to his own use, such conversion occurred in the State of Missouri and not in Texas. If the conversion of the $100,000 by appellant was consummated by the issuance of the stock of the Missouri Union Corporation, such occurred entirely within the State of Missouri and not within the State of Texas.
This question as to where any conversion took place is not one of venue, because venue presupposes that an offense has been proven. To the contrary, the question is one of jurisdiction and, until proven, no offense has been shown to have been committed in this state of which the courts of Texas would have jurisdiction.
The jurisdiction of the trial court to find this appellant guilty of the offense of embezzlement has not been shown, nor *374 has the offense of embezzlement by appellant been shown to have occurred within the State of Texas.
Under this record, the undisputed facts, and the law, appellant has not been proved guilty of the offense of embezzlement.
In order that by remaining silent I may not be cast in the position of agreeing to the admissibility of the sixteen checks whereby the funds of the ICT Corporation were paid to J. B. Saunders, I have only to say that there was no issue under the facts of this case which authorized the admission of those checks in evidence.
This admission in evidence violated that rule which says that extraneous offenses and transactions are admissible in evidence only when some issue is presented under the facts of the case as to intent, motive, identity, or system of the accused.
My views upon that question will be found in the dissenting opinion in the case of Parnell v. State, 166 Texas Cr. Rep. 239 , 312 S.W. 2d 506 .
I am not blind to or unmindful of the fact that the conclusions I have here expressed, to the effect that appellant has not been tried and convicted in accordance with law and that his guilt has not been established by legal and competent evidence, are contrary to the adverse critcism and publicity and notoriety given to this case and this appellant.
It is my duty to decide this case solely under the written law of this state and under the facts and the record here presented and to recognize nothing else. This I have done.
It was Mr. Justice Holmes of the Supreme Court of the United States — whom Mr. Justice Frankfurter, in Craig v. Harney, 91 L. Ed. 1546, at p. 1560 , referred to as “an Olympian who was so remote from the common currents of life that he did not read newspapers” — who once said, in referring to our system of justice, in the case of Patterson v. Colorado, 205 U.S. (at page 462), 51 L. Ed. 881 , 27 Sup. Ct. 556:
“* * * ftyat the conclusions to be reached in a case will be induced only by evidence and argument in open court, and not by any outside influence, whether of private talk or public print.”
*375 It was Mr. Justice Black who said, in the case of Bridges v. California, 314 U.S. 252 , 86 L. Ed. 192 , 62 Sup. Ct. 190:
“Legal trials are not like elections, to be won through the use of the meeting-hall, the radio, and the newspaper.”
I respectfully enter my dissent to the affirmance of the instant case.