LeMaster v. State (81 Tex. Crim. 577, 1917)

DAVIDSON, Presiding Judge.

Appellant was convicted of becoming indebted to a State bank, of which he was president, in the sum of $8000.

The first count in the indictment sets out the particulars of the. transaction relied upon by the State, but this count was discarded by the court in submitting the case to the jury, and he submitted only the second count, omitting the third count. The count submitted charged that appellant was duly elected, qualified and acting president, and a member of the board of directors of the First State Bank of Amarillo, a banking corporation theretofore incorporated and engaged in the business as a State bank in the City of Amarillo under the authority of the laws of the State, and as said officer he became indebted to the bank in the sum of $8000, without the consent of the majority of the board of directors, and without having the matter duly registered or inscribed upon the minutes of the bank.

The indictment is attacked in that it fails to apprise the'defendant of the nature and circumstances of the case and wherein he had violated the law. He invokes the statutory rule, which is settled, that everything necessary to be proved must be alleged in the indictment. We are of opinion this indictment is too general and does not specifically notify the defendant of the transaction for which he is to be tried, and that the only allegation in the submitted count is of a very general nature and to the effect that he became indebted to the bank in the sum of $8000 without proper authority from the board of directors. The writer is of opinion, without going into a discussion at any length of the matter, that the count submitted to the jury is not, within the contemplation of the law, sufficient. The general allegation that appellant had become indebted to the bank in the sum of $8000 is too general. There is a want of particularity about it, and it does not inform the defendant of what transaction he is charged. There is nothing to describe the manner of indebtedness, or how it came about, so as to notify defendant of the matters and transactions that he was to meet by the proof. The first count set out particularly these- different matters and gave appellant notice of how and when and the circumstances attending the indebtedness, and how it came about, but the court did not submit this to the jury. This much is said in a general way.

It will be noticed upon investigation of the case that all the facts to he relied upon by the State were known at the time the indictment was presented, and as to how the indebtedness was created, if there was any. The facts in this connection, as relied upon by the State, were made through the testimony of an accomplice, MeSpadden. His testimony, substantially, is that Morris came to and notified him of the fact that he could buy an optional cattle contract, the cattle being in Arizona; that he thought this option could he bought at $5000, and if he had the money the trade could he made and profit made out of it by selling this contract for an enhanced value to other parties. His object in calling MeSpadden was that MeSpadden might enable him in some way to get the money. They discussed it, and MeSpadden not having the money suggested they see appellant, who was president of the State Amarillo Bank, and get him to furnish the money. Appellant was called, and McSpadden’s testimony is to the effect that after discussing it appellant agreed to furnish the money, Morris and MeSpadden signing the note at the bank for $5000. There was something said to the effect that it was not probable that the option could he bought at $5000; that it might take more money. MeSpadden further testified that appellant, Morris and himself agreed that Morris and MeSpadden were to sign a note to the bank and have the money transferred to their credit, and that appellant was to be a partner in the profits and maybe losses, but his name not to be known in the matter, and in this way that appellant became a partner in the purchase of the cattle option contract. He also testified that there was no other cattle contract in contemplation or discussed between them at the time. His language was: “Yes, sir; it was agreed that Mike C. LeMaster was to advance the money on the condition that I went along and used what influence I possessed to keep Morris from getting drunk and Gus agreed not to get drunk any more and straighten up. There was nothing said at that time about any other transaction. We were to do the best we could. We did not know exactly how much money it would take but we were to let Mr. LeMaster know. We wanted to get an option on the cattle for spring delivery and then sell the option. The agreement was that Mr. LeMaster was to advance the money to be paid as a forfeit on the cattle and Morris and myself were to go out there and get' a contract and purchase them and sell the contract.” This occurred on the 26th day of December, and on the 27th a note was executed by Morris and McSpadden to the bank, appellant’s name not appearing in any of these matters. Upon signing the note Morris and McSpadden left Amarillo and went to El Paso. They there got in touch with the owners of the cattle and bought the option. The owners of the cattle, however, required eight thousand instead of five thousand dollars. By wire appellant was notified of that fact. He took the Morris and McSpadden note and wrote above the five thousand, three thousand. The intention it seems was to make the note for eight thousand dollars instead of five thousand dollars. The deal was made, and in three or four days the option was transferred at a profit of considerable amount and closed out, and Morris and McSpadden came back to- Amarillo and deposited the money in the State bank at Amarillo, and on the 6th of January took up and paid oS the note. Appellant was not in Amarillo at the time but was in Fort Worth. He knew nothing about the payment of the note until later information was conveyed to him. Morris testified in many respects as did Mc-Spadden, but he denied that LeMaster had or was to have any interest in the option contract, and was in no way connected with the profits or losses. In fact, he was in no sense, or in no way interested in the contract, nor was he to receive any profits, dividends or pay any losses. Appellant testified in his own behalf as did Morris. After returning to Amarillo and taking up the note McSpadden and Morris, without the knowledge of appellant, went to Hew Mexico with a view of purchasing other cattle. ■ Appellant had nothing to do with this and knew nothing of this matter. There were other subsequent cattle deals by McSpadden and Morris which the State undertook to connect appellant with by McSpadden’s testimony. Both Morris and appellant denied that there was any partnership. There was evidence introduced by the State to show these subsequent transactions, over the protest and objection of appellant. We are of opinion these objections were well taken. The court also failed to limit this testimony. Having admitted the testimony, the court should have limited it. It was not in reference to the original case and could not be, and if it was introduced for any purpose it was to show that by reason of the subsequent transactions between the parties that they were partners in the original transaction declared upon in the indictment. As before stated, we are of opinion these matters should not have gone before the jury, but having been permitted to be introduced, the court should have limited them to their proper office in 'his charge. The State’s testimony as well as that, for the defendant all agree that'if appellant had any connection with any of these transactions it was the one based on the note and the sum finally drawn from the bank of eight thousand dollars, which was paid back within ten days by Morris and McSpadden. McSpadden says there was no other transaction in contemplation or under discussion. Morris uses the same language and testifies to the same thing; so does appellant. So it would be evident that subsequent transactions if entered into independent or disconnected with the first, not growing out of or related to it in any way, could not come into the case as testimony on the question of partnership in the first transaction. There was nothing said, as McSpadden, Morris and LeMaster all testify, as to any other trade either then or in eontemplation for future dealings. The fact that later they may have made other trades, or that appellant may have become interested in later transactions, could not afford testimony proving a partnership in a single transaction which begun and ended with itself. These latter matters had no relation to or bearing upon the case; they did not serve to identify or develop the case; were not res gestae, nor could possibly reach the question of system. The matter is here dealt with generally without going into details as shown by defendant’s bills of exception with reference to these matters. There are several of these matters, all of which upon another trial should be excluded.

The State introduced Mr. Mood as a witness, and was proving by him some matters that occurred on the trial of a civil case in which he took down the testimony as stenographer. It seems they were seeking to prove the testimony of appellant while testifying in his own behalf on the trial of the civil case. There are several pages of these questions and answers set out in the bill so as to make it clear and plain. It developed in his testimony that on the trial of the civil case appellant won; that the jury found a verdict in his favor. When the testimony of Mr. Mood was complete, or they had become satisfied about it, the State moved to exclude all his testimony from the consideration of the jury. The appellant excepted. The State’s counsel put their motion to withdraw the testimony on the ground that they did not purpose to introduce the record in the civil case. These matters are generally stated and not the details. We are of opinion that the objections of the defendant were well taken. The testimony should have remained before the jury. Among the early cases'on this question in Texas, is Speight v. State, 1 Texas Crim. App., 552. The first section of the syllabus of that case sufficiently states the question: “If the accused elicits testimony adverse to himself, he must take the consequences; and he is not entitled "to have it withdrawn from the jury because part of the same proof, when offered by the prosecution, had previously, on his objection, been excluded by the court.” In that case the defendant moved to exclude testimony introduced by himself that he thought adverse to him. The State would occupy no better position under the same circumstances than would appellant. The testimony, as said in the Speight case, if illegal at all, was his own testimony, and we opine he ought to be held to take the consequences, and could not exclude it simply because it was found to be unfavorable to his case. In Moore v. State, 6 Texas Crim. App., 563, the question came again. The head-note of that opinion is as follows: “If the defendant elicits testimony adverse to himself, he must abide the consequences; and that a State’s witness, upon cross-examination by the defendant, testified to a confession made after arrest, is not cause for a new trial, as having improperly gone to the jury.” This doctrine was approved in Allen v. State, 8 Texas Crim. App., 67, and Robins v. State, 9 Texas Crim. App., 671. In the case of McDade v. State, 27 Texas Crim. App., 641, the question again came. At page 689 of thht report the court said: “In the seventh assignment of error it is complained that The court failed to instruct the jury that the declaration of Allchin to Felker that threats had been made against him by defendant was not any evidence that such threats were made, and that they should not consider such statement as a part of the evidence for that purpose, when it was expressly requested so to charge by defendant/ This evidence was drawn out by defendant upon the direct examination of his witness Felker, and neither the prosecution nor the court was responsible for it. If the defendant elicits testimony adverse to himself he must abide the consequences,” citing Speight v. State, 1 Texas Crim. App., 551, and Moore v. State, 6 Texas Crim. App., 562.

The State having introduced Mr. Mood as a witness, and his testimony being introduced without objection from the defendant, the State could not, because the testimony was somewhat damaging to its case, withdraw it from the jury. The State introduced it and could not withdraw it over objection of appellant. The above cited cases seem to settle that question.

There are exceptions to the second subdivision of the charge on various grounds. This subdivision limits the jury to the second count, and charged if the jury should find appellant was an officer duly elected, qualified and acting president and a member of the board of directors of the State bank, and, that the bank was incorporated, etc., and he became indebted to that bank in the sum of eight thousand dollars without proper authority from the board of directors, they should convict him. It will be noticed in this connection that this charge submits the fact that he was president and one of the board of directors. The indictment, while it mentioned the fact that he was an officer and member of the board of directors, it did not attempt to charge him with being guilty of violating the State law as a director, but only as president or acting president. The president can not borrow any amount of money from the bank without proper authority. The indictment did not undertake to charge any matter that would make him criminally liable as a director. He was charged as the president of the bank and not as a member of the board of directors. , If he was sought to be convicted as a director, then the charge should have specifically brought that matter to the attention of the jury.

It will be noticed that this charge does not undertake anywhere to inform the jury as to the relation of appellant to the amount of money or the circumstances by which he could have possibly been indebted to the bank. All the testimony and the indictment excludes the idea that his name was on the bank books. The proof all shows that it was not, and that there was no contract and no evidence in the bank books, records or papers that his name was in any way connected with any indebtedness to the bank. The only way by which it was sought to hold him liable was through the testimony of McSpadden that he was a secret partner in the profits and losses that might arise in the option contract which Morris and McSpadden accomplished and for which the bank is supposed to have furnished the eight thousand dollars. In order, therefore, to hold appellant guilty, the charge should have conformed to the facts, and in order to hold him the State would have to show that he was guilty under the circumstances detailed by the State’s witness as partner. In other words, in order to convict appellant the jury should have been instructed that they would have to find that appellant became indebted to the bank by means of this partnership matter about which McSpadden testified. This was the State’s case, and it was all the State had or put into the trial.

In this same connection it may be well enough to notice that section 3 of the charge is a general statement of the law of partnership as understood by the court in giving his charge, and it reads as follows:

“A partnership is formed by two or more persons placing their money, effects, labor and skill or some one or all of them in business with the purpose and intention of dividing the profit and bearing the loss in certain proportions and may be made and entered into either by express agreement, oral or written, of those forming the partnership or it can result from the conduct of the parties in relation to the business. Those forming the partnership are partners.

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