Rick v. State

KRUEGER, Judge. The offense is theft by bailee. The punishment assessed is confinement in the. state penitentiary for a period of two years. The indictment in this case contained three counts. The first count charged theft of $1,512.00 current money of the U.S.A. The second count charged embezzlement of $1,512.00, and the third count charged theft by bailee of $1,512.00 current money of the U.S.A. from Mike Cuscurida. The court submitted the case to the jury on the third count in the indictment. Appellant challenges the sufficiency of the evidence to sustain his conviction under said count on the ground that the evidence shows that if anything was embezzled it was a check in the sum of $1,512.00 and not $1,512.00 current money of the U.S.A. of the value of $1,512.00. The record reflects that appellant was engaged in the business of buying and selling second-hand automobiles. Mike Cuscurida was desirous of purchasing a new Chevrolet automobile and inquired of appellant if he knew where he might obtain one. Appellant told him that he would try to locate one. A few days later, appellant advised Cuscurida that he had located a 4-door Chevrolet sedan at Amarillo for the sum of $1,512.00. It was agreed that appellant would go to Amarillo to get the automobile and deliver it to Cuscurida at Waco for which service Cuscurida was to pay him $150.00 upon delivery of the car to him at Waco. Cuscurida gave him a check in the sum of $1,512.00 payable to appellant which he was to use in payment of the car at Amarillo. The check was drawn on the First National Bank of Waco, Texas, and was dated February 20th, 1947. [428] Appellant cashed the check and instead of going to Amarillo and bringing the automobile to Waco for delivery to Cuscurida as he had promised to do, he went to California where he was subsequently apprehended and brought back. Appellant did not testify or offer any affirmative defense but relied on the insufficiency of the evidence to show that he was guilty of embezzlement of $1,512.00 current money of the U.S.A. Art. 1547, P. C., reads as follows: “Within the meaning of ‘money’, as used in this chapter, are included also bank bills or other circulating medium current as money.” In the case of Conner v. State, 133 Tex. Cr. R. 429, this Court said: “It was alleged in the indictment that appellant obtained from Mr. Richardson $787 in lawful money of the United States, while the evidence showed that appellant and Howard received a check for $787.50 payable to C. 0. Howard, or bearer. At the time the check was delivered appellant insisted that Mr. Richardson telephone the Security National Bank and direct that said check be cashed. He complied with this request, and appellant and Howard got in their automobile and drove away. Shortly thereafter Howard entered the bank and cashed the check. Appellant contends that there is a fatal variance between the allegation and the proof with respect to the property he is alleged to have obtained, his position being that the proof fails to sustain the averment in the indictment that he obtained lawful money of the United States. We are not in accord with this contention. Appellant obtained the money of Richardson by a false pretext, through the instrumentality of the check, upon which he received the money. The holding in Wimer v. State, 48 S. W. (2d) 296; is applicable to the present situation. In that case we quoted from State v. Detloff, 201 Iowa, 159, 205 N. W. 534.” In the instant case, appellant cashed the check, appropriated the money, and departed for the West Coast where he was apprehended and brought back. He did not deliver the car to the injured party nor return the money. We see no variance. Appellant urged some objections to the court’s charge and suggested to the court to incorporate certain instructions. We have examined the court’s main charge in the light of the objections urged thereto and have reached the conclusion that the [429] court in his main charge fairly and adequately instructed the jury on the law applicable to the facts of the case. No reversible error appearing in the record, the judgment is affirmed. Opinion approved by the Court.