supreme11

File contributed by Lisa Lach and proofed/formated by Dena Stripling

Appeal from District Court, Potter County; H. L. Umphres, Judge.
Mike C. Le Master was convicted of unlawfully becoming indebted to a state bank of
which he was president, and appeals. Reversed and remanded, and rehearing denied.

In the prosecution of a state bank president for unlawfully becoming indebted to the
bank by being a member of a partnership which borrowed money from the bank in the name
of two others, it was error to admit evidence of transactions after the alleged offense
tending to show a partnership at that time.

An instruction to convict if defendant became unlawfully indebted to the bank of which
he was president, without stating that he must have become indebted through a secret
partnership alleged in the indictment, held erroneous.

Evidence in the prosecution of bank president for unlawfully borrowing money through
secret connection with a partnership to which the loan was made, held insufficient to
show that defendant was a partner, and through the partnership became indebted to the
bank.

Indictment held to sufficiently charge the defendant bank president in a general way with
becoming indebted to the bank, but not to authorize admission of evidence of transactions
showing his indirect liability through membership in a firm to which the loan was made.

In prosecution of bank president for unlawfully borrowing money from bank, held, that the
court should have limited evidence of subsequent transaction to its effect as tending to
show existence of partnership of which president was a member, declared on in the indictment.

Permitting the state to withdraw evidence held error, regardless of whether the evidence
was introduced by the state or elicited by accused on cross- examination of the state's
witness.

In prosecution of bank president for unlawfully borrowing money through a loan made to a
firm of which he was a secret member, held error to instruct on the law of partnership
without applying such law to the facts.

Error in an instruction in a case wherein accused was convicted required a reversal, where
it was speculative as to what the verdict would have been under a correct instruction.

Failure to instruct that defendant should be acquitted of unlawfully borrowing money
from a state bank of which he was president, through his secret membership in a firm,
unless the partnership existed as alleged, held fatal error where the evidence as to
the existence of the partnership was conflicting.
**830 *578 A. A. Lumpkin, of Amarillo, and Cooper & Merrill, of Houston, for appellant.
*579 Martin, Kinder, Russell & Zimmermann, of Plainview, and C. C. McDonald, Asst. Atty.
Gen., for the State.

DAVIDSON, P. J.
Appellant was convicted of becoming indebted to a state bank, of which he was president,
in the sum of $8,000.
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 $8,000, 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. The writer is 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 $8,000 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 $8,000 is too *580 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 be 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,
McSpadden. His testimony, substantially, is that Morris came 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 be bought at $5,000, and if he had the money the
trade could be made and profit made out of it by selling this contract for an enhanced
value to other parties. His object in calling McSpadden was that McSpadden might enable
him in some way to get the money. They discussed it, and McSpadden, 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 **831 the effect
that after discussing it appellant agreed to furnish the money; Morris and McSpadden
signing the note at the bank for $5,000. There was something said to the effect that
it was not probable that the option could be bought at $5,000; that it might take more
money. McSpadden further testified that appellant, Morris, and himself agreed that
Morris and McSpadden 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. Le Master 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. Le Master know. We wanted
to get an option on the cattle for spring delivery and then sell the option. The agreement
was that Mr. Le Master 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 *581 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 $8,000 instead of $5,000. By wire appellant was notified of that fact.
He took the Morris and McSpadden note and wrote above the 5,000 3,000. The intention it
seems was to make the note for $8,000 instead of $5,000. 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 off the note. Appellant was
not in Amarillo at the time, but was in Ft. Worth. He knew nothing about the payment of
the note until later information was conveyed to him. Morris testified in many respects
as did McSpadden, but he denied that Le Master 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 New Mexico with a view of purchasing other cattle.
Appellant had nothing to do with this and knew nothing of this matter.
[1][2] 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 $8,000, 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 *582 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 Le Master all testify, as to any
other trade either then or in contemplation 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.
[3] 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 **832 to prove the testimony of apellant
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 Tex. 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 Tex. App. 563, the question came again. The headnote
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 *583 a new trial, as having improperly
gone to the jury."
The doctrine was approved in Allen v. State, 8 Tex. App. 67, and Robins v. State, 9 Tex.
App. 671. In the case of McDade v. State, 27 Tex. App. 641, 11 S. W. 672, 11 Am. St.
Rep. 216, the question again came. At page 689 of that report (11 S. W. 675) 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 Tex. App. 551, and Moore v.
State, 6 Tex. 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 $8,000 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 cannot 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.
[4] 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 *584 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 $8,000. 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 **833 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. When a partnership is formed each individual partner in
relation to partnership business in law binds himself and each of the other members of
the partnership jointly and severally for any partnership obligations made in furtherance
of the partnership enterprise and within the scope of the partnership business."
[5][6] This is all the charge with reference to partnership. It will be seen that it has
no reference to and is not connected back with the other charge; nor does the other charge
refer to partnership, nor is the jury charged that if appellant was a partner within the
terms of the law with McSpadden and Morris, and under that partnership there was or
could be an indebtedness created for which appellant would be responsible, they might
convict. This definition of partnership is thrown into it in a general way without any
application of the rule of partnership to the facts in the ease, or facts of the case
to the partnership. In the second clause of the charge which submits the law for
conviction the partnership is not mentioned. Under the facts it was all the state
had upon which to predicate a conviction. In the charge on partnership it does not
inform the jury that if appellant connected himself with this indebtedness by means
of this partnership, and was responsible under the terms of the contract by reason of
this partnership, that he might be liable for the indebtedness, but instructs the jury
to convict for the indebtedness in the second clause, and gives a general definition
without any application of the law to the facts of partnership. If appellant was
guilty at all it was under McSpadden's *585 testimony to the effect that he agreed
to divide the profits and losses and carry the partners under the contract, and that
he did furnish the money from the bank. The state admits error in the charge on
partnership as given, but asserts the error was favorable to appellant. It was error,
and we think harmful. The error is conceded; the verdict was guilty. What may have
been the verdict under a correct charge is speculative, but it is not speculative
that he was found guilty.

[7] There is another phase to this charge that is fatal. McSpadden swore to this
partnership as set out in the early part of the opinion. Morris and appellant denied
it emphatically. There was an issue sharply drawn by this testimony as to whether
this partnership existed or not. The bulk and the weight of the testimony was that
the partnership did not exist. The jury so found by their verdict in the civil
proceeding and exonerated appellant as partner and found in his favor in the suit
against himself and Morris by McSpadden. This was shown by the testimony of Mood.
Now the converse of the proposition, had the partnership been properly charged,
was if the jury should find there was no partnership existing between these parties
at the time, they should find in his favor and acquit him. Such omission is fatal
error.
[8] It is contended that the evidence is not sufficient to show that appellant was
a partner, and that through the partnership became indebted to the bank. The writer
is of opinion that this proposition is correct. McSpadden testified, and he alone,
that appellant was to be connected with the profits or losses, and Morris testified
positively that such was not the case, and that he and McSpadden alone were
responsible, and that he was to get two-thirds of the profits and McSpadden one-third,
and that appellant had nothing to do with it. McSpadden testified they were to be
equal partners, each getting a third. There were some telegrams passing between the
parties with reference to this $8,000 option contract introduced by the state, but
these did not show that a partnership existed. It was with reference to the fact
that the $5,000 first agreed upon and mentioned in the note was not sufficient, and
appellant agreed to furnish the extra $3,000 from the bank, and later wrote it in the
note. The note was payable to the bank, and appellant was in no way concerned with it,
and if he was connected in any manner with it it was by reason of McSpadden's
testimony, which appellant and Morris both denied. As it occurs to the writer, there
is no testimony which supports or corroborates McSpadden in his statement. If,
however, the state should further prosecute, the testimony should be limited to
the transaction about which the witnesses testified and not extend it to subsequent
contracts in no way connected with or related to the one under investigation.
The judgment is reversed, and the cause remanded.

*586 On Motion for Rehearing.
[9] On a former day of the term the judgment was reversed and the cause remanded.
The state contends in a motion for rehearing that the court was in error in holding
that the indictment was not valid. It was stated that the general allegation that
appellant had become indebted to the bank in the sum of $8,000 was not specific enough
and entirely too general; that it was wanting in particularity, and failed to inform
the defendant of the transaction, for which he was **834 to be tried. The writer,
upon further investigation, still adheres to his original views. The majority,
however, do not agree with him. Under the view of the majority the former opinion
will be modified and the indictment held sufficient to charge appellant in a
general way with becoming indebted to the bank in the specified sum. The indictment
contained three counts. The first set out the facts attending the transactions
by which it was sought to connect appellant with violating the banking law, he
being president of the bank. That count, however, was not submitted to the jury
by the court, and passed out of the case. The second count was submitted in which
the general allegation was made that appellant became indebted to the bank of
which he was president. Under these allegations the state would be required to
prove that appellant had become directly indebted to the bank, and that proof of
the matters and facts set up by the state in its evidence would not meet the count
upon which the conviction was obtained, which evidence was to the effect that
appellant and McSpadden and Morris entered into an agreement by which they were to
buy cattle and the bank furnish the money, predicated upon a note given by McSpadden
and Morris, and the money transferred on the books of the bank to their credit, and
that appellant would be a partner in the profits and losses of the cattle transaction
for which the note was given to secure funds in payment of the cattle. Appellant's
name does not appear anywhere either in the note or on the bank books, and on the
face of the transaction he is not directly shown to be connected with any of those
matters. In other words, it was a secret partnership, if it existed. This was
perhaps the most serious question in the case so far as the evidence was concerned.
So following the views of the majority, the count will be held sufficient to
charge an offense, but not to admit evidence of the transactions showing an
indirect liability as sought by the state; that this would be a variance
between the allegation in the count submitted and the evidence, and therefore the
evidence did not support the finding of the jury under the count and the charge
submitting that count.
In regard to what was said in the original opinion with reference to a bill of
exceptions which contains matters and things set out through the witness Mood, the
state contends that the opinion was *587 in error in holding that state's counsel
was responsible for withdrawing all the testimony of Mood from the jury. The
contention is that the state did not withdraw the statements of Mood on cross-examination
by appellant's counsel to the effect that appellant had won the civil suit. Strictly
and technically speaking this contention may be correct. The bill in regard to this
matter shows that when Mood was placed upon the stand and the various questions asked
and answers elicited, he was then passed to appellant's counsel for cross-examination,
and, among other things, it was elicited from him that appellant had won the civil
suit in which McSpadden sued Morris and himself for settlement of alleged partnership
matters, which involved the $8,000 matter. State's counsel objected to this cross-examination
as to the matters elicited from Mood, but the court overruled the objection upon the
ground that the state had drawn out the matter, and this was a legitimate cross-examination.
When this occurred the bill of exceptions recites that:
"Thereupon the state rested, and stated they desired to consult a moment, and within
a few minutes returned to the court, and through their private prosecutor, Mr. Martin,
stated to the court, 'We are not going to introduce any of the record, and we ask that
the court strike out the testimony of Mr. Mood in regard to it.' (The record referred to
being the transcript of what purported to be the statement of facts in the case of W. A.
McSpadden v. R. A. Morris et al., in which the state's counsel had attempted to prove up
by A. M. Mood for the purpose of offering the same and parts thereof to impeach the
defendant as a witness.) The court then stated, 'What part of the record do you have
reference to?' Mr. Martin stated in reply to such question, 'All of Mr. Mood's testimony
identifying the record, since we are not offering any of the record, that evidence
would serve no purpose. We do not intend to offer the record, and we would like to have
this testimony stricken from the record, since it does not tend to prove any issue in
this case."'
Thereupon defendant's counsel objected to the withdrawal of any of the testimony by the
state for the reason they had offered the same, and when it was proved harmful to them
they desired to withdraw it, and that it was material and beneficial to the defendant,
and that they had no power to withdraw it when they had offered it themselves, and they
considered it harmful to then be permitted to withdraw it. The court, not specifically
ruling on the objection, turned to the jury and instructed them as follows:
"I will strike out and instruct the jury not to consider the testimony of Mr. Mood."
In the former opinion the writer was under the impression that, legally speaking, state's
counsel were responsible for being really the moving parties in getting the matter before
the jury as well as to its final withdrawal or exclusion after putting it in before the
jury; that it was too late for the state to withdraw it after cross-examination of the
witness in reference to the matter they had drawn out; and that their motion, had it
been sustained, would practically have operated to withdraw all the testimony of the
witness Mood, *588 whether it was direct or cross-examination. If the writer was in
error about this, then counsel for the state may not have been altogether responsible
for the withdrawal of Mood's testimony favorable to the defendant. But the matter was
so intermingled--the direct and cross examination taken--with the remarks of the court
it occurred to the writer that the effect **835 of the state's motion was to withdraw
all the testimony, especially in view of the fact that this motion was not made until
after Mood developed the fact that appellant had won the civil suit. This testimony
seems to have been introduced by the state for the purpose of laying some predicate
with reference to the case and the testimony of defendant in the civil suit, but when
Mood testified to the fact that appellant had been eliminated from that record by the
verdict of the jury, counsel moved to exclude or withdraw the testimony from the jury.
State's counsel insist strenuously that they did not undertake to withdraw the testimony
introduced on cross-examination, and that they were only undertaking to withdraw that
which they introduced. Without going into any detail about the matter, or any discussion,
we place it as the record does, so that it will be fully understood and its effect and
result from the whole bill of exceptions may not be unjust to either side. The result,
however, would be the same. This testimony was withdrawn from the jury, and under the
circumstances it should not have been withdrawn. It is deemed unnecessary to discuss
the other matters.
Finding no reason why the motion for rehearing should be granted, it is ordered that
said motion be overruled.
Tex.Crim.App. 1917.
LE MASTER v. STATE.
196 S.W. 829, 81 Tex.Crim. 577
END OF DOCUMENT

================

Permitting the state to withdraw evidence held error, regardless of whether the evidence was
introduced by the state or elicited by accused on cross- examination of the state's witness.

Error in an instruction in a case wherein accused was convicted required a reversal,
where it was speculative as to what the verdict would have been under a correct instruction.

Failure to instruct that defendant should be acquitted of unlawfully borrowing money from
a state bank of which he was president, through his secret membership in a firm, unless
the partnership existed as alleged, held fatal error where the evidence as to the
existence of the partnership was conflicting.
**830 *578 A. A. Lumpkin, of Amarillo, and Cooper & Merrill, of Houston, for appellant.
*579 Martin, Kinder, Russell & Zimmermann, of Plainview, and C. C. McDonald, Asst. Atty.
Gen., for the State.

DAVIDSON, P. J.
Appellant was convicted of becoming indebted to a state bank, of which he was president,
in the sum of $8,000.
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 $8,000, 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. The writer is 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 $8,000
without proper authority from the board of directors. The writer is of opinion, w
ithout 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 $8,000 is
too *580 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 be 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, McSpadden.
His testimony, substantially, is that Morris came 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 be bought at $5,000, and if he had the money the trade could be made
and profit made out of it by selling this contract for an enhanced value to other
parties. His object in calling McSpadden was that McSpadden might enable him in some
way to get the money. They discussed it, and McSpadden, 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
**831 the effect that after discussing it appellant agreed to furnish the money;
Morris and McSpadden signing the note at the bank for $5,000. There was something
said to the effect that it was not probable that the option could be bought at $5,000;
that it might take more money. McSpadden further testified that appellant, Morris, and
himself agreed that Morris and McSpadden 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. Le Master 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. Le Master know. We wanted
to get an option on the cattle for spring delivery and then sell the option. The agreement
was that Mr. Le Master 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 *581 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 $8,000 instead of $5,000. By wire appellant was notified of that fact. He
took the Morris and McSpadden note and wrote above the 5,000 3,000. The intention it seems
was to make the note for $8,000 instead of $5,000. 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 off the note. Appellant was not in
Amarillo at the time, but was in Ft. Worth. He knew nothing about the payment of the
note until later information was conveyed to him. Morris testified in many respects as
did McSpadden, but he denied that Le Master 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 New Mexico with a view of purchasing other cattle.
Appellant had nothing to do with this and knew nothing of this matter.
[1][2] 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 $8,000, 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 *582 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 Le Master all testify, as to any
other trade either then or in contemplation 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.
[3] 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 **832 to prove the testimony of apellant
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 Tex. 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 Tex. App. 563, the question came again. The
headnote 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 *583 a new trial, as having
improperly gone to the jury."
The doctrine was approved in Allen v. State, 8 Tex. App. 67, and Robins v. State,
9 Tex. App. 671. In the case of McDade v. State, 27 Tex. App. 641, 11 S. W. 672,
11 Am. St. Rep. 216, the question again came. At page 689 of that report (11 S. W. 675)
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 Tex.
App. 551, and Moore v. State, 6 Tex. 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. T
his 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 $8,000 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 cannot
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.
[4] 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 *584 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 $8,000. 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 **833 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. When a partnership is formed
each individual partner in relation to partnership business in law binds himself
and each of the other members of the partnership jointly and severally for any
partnership obligations made in furtherance of the partnership enterprise and
within the scope of the partnership business."
[5][6] This is all the charge with reference to partnership. It will be seen that
it has no reference to and is not connected back with the other charge; nor does
the other charge refer to partnership, nor is the jury charged that if appellant
was a partner within the terms of the law with McSpadden and Morris, and under
that partnership there was or could be an indebtedness created for which appellant
would be responsible, they might convict. This definition of partnership is thrown
into it in a general way without any application of the rule of partnership to the
facts in the ease, or facts of the case to the partnership. In the second clause of
the charge which submits the law for conviction the partnership is not mentioned.
Under the facts it was all the state had upon which to predicate a conviction. In
the charge on partnership it does not inform the jury that if appellant connected
himself with this indebtedness by means of this partnership, and was responsible
under the terms of the contract by reason of this partnership, that he might be
liable for the indebtedness, but instructs the jury to convict for the indebtedness
in the second clause, and gives a general definition without any application of the
law to the facts of partnership. If appellant was guilty at all it was under McSpadden's
*585 testimony to the effect that he agreed to divide the profits and losses and carry
the partners under the contract, and that he did furnish the money from the bank.
The state admits error in the charge on partnership as given, but asserts the error
was favorable to appellant. It was error, and we think harmful. The error is conceded;
the verdict was guilty. What may have been the verdict under a correct charge is
speculative, but it is not speculative that he was found guilty.
[7] There is another phase to this charge that is fatal. McSpadden swore to this
partnership as set out in the early part of the opinion. Morris and appellant denied
it emphatically. There was an issue sharply drawn by this testimony as to whether
this partnership existed or not. The bulk and the weight of the testimony was that
the partnership did not exist. The jury so found by their verdict in the civil
proceeding and exonerated appellant as partner and found in his favor in the suit
against himself and Morris by McSpadden. This was shown by the testimony of Mood.
Now the converse of the proposition, had the partnership been properly charged, was
if the jury should find there was no partnership existing between these parties at
the time, they should find in his favor and acquit him. Such omission is fatal error.
[8] It is contended that the evidence is not sufficient to show that appellant was a
partner, and that through the partnership became indebted to the bank. The writer is
of opinion that this proposition is correct. McSpadden testified, and he alone, that
appellant was to be connected with the profits or losses, and Morris testified
positively that such was not the case, and that he and McSpadden alone were
responsible, and that he was to get two-thirds of the profits and McSpadden
one-third, and that appellant had nothing to do with it. McSpadden testified
they were to be equal partners, each getting a third. There were some telegrams
passing between the parties with reference to this $8,000 option contract
introduced by the state, but these did not show that a partnership existed.
It was with reference to the fact that the $5,000 first agreed upon and mentioned
in the note was not sufficient, and appellant agreed to furnish the extra $3,000
from the bank, and later wrote it in the note. The note was payable to the bank,
and appellant was in no way concerned with it, and if he was connected in any
manner with it it was by reason of McSpadden's testimony, which appellant and
Morris both denied. As it occurs to the writer, there is no testimony which
supports or corroborates McSpadden in his statement. If, however, the state
should further prosecute, the testimony should be limited to the transaction
about which the witnesses testified and not extend it to subsequent contracts
in no way connected with or related to the one under investigation.
The judgment is reversed, and the cause remanded.

Thereupon defendant's counsel objected to the withdrawal of any of the testimony by
the state for the reason they had offered the same, and when it was proved harmful
to them they desired to withdraw it, and that it was material and beneficial to the
defendant, and that they had no power to withdraw it when they had offered it
themselves, and they considered it harmful to then be permitted to withdraw it.
The court, not specifically ruling on the objection, turned to the jury and
instructed them as follows:
"I will strike out and instruct the jury not to consider the testimony of Mr. Mood."
In the former opinion the writer was under the impression that, legally speaking, state's
counsel were responsible for being really the moving parties in getting the matter
before the jury as well as to its final withdrawal or exclusion after putting it in
before the jury; that it was too late for the state to withdraw it after
cross-examination of the witness in reference to the matter they had drawn out;
and that their motion, had it been sustained, would practically have operated
to withdraw all the testimony of the witness Mood, *588 whether it was direct
or cross-examination. If the writer was in error about this, then counsel for
the state may not have been altogether responsible for the withdrawal of Mood's
testimony favorable to the defendant. But the matter was so intermingled--
the direct and cross examination taken--with the remarks of the court it occurred
to the writer that the effect **835 of the state's motion was to withdraw all the
testimony, especially in view of the fact that this motion was not made until
after Mood developed the fact that appellant had won the civil suit. This testimony
seems to have been introduced by the state for the purpose of laying some predicate
with reference to the case and the testimony of defendant in the civil suit, but when
Mood testified to the fact that appellant had been eliminated from that record by
the verdict of the jury, counsel moved to exclude or withdraw the testimony from the
jury. State's counsel insist strenuously that they did not undertake to withdraw the
testimony introduced on cross-examination, and that they were only undertaking to
withdraw that which they introduced. Without going into any detail about the matter,
or any discussion, we place it as the record does, so that it will be fully
understood and its effect and result from the whole bill of exceptions may not be
unjust to either side. The result, however, would be the same. This testimony was
withdrawn from the jury, and under the circumstances it should not have been
withdrawn. It is deemed unnecessary to discuss the other matters.
Finding no reason why the motion for rehearing should be granted, it is ordered
that said motion be overruled.
Tex.Crim.App. 1917.
LE MASTER v. STATE.
196 S.W. 829, 81 Tex.Crim. 577
END OF DOCUMENT
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