Corporation catches employee (formerly trusted) with hand in till. (Writing checks on company account to self.)
Corporation makes a promissory note and, now former, employee and corporation sign. Employee is to pay back nearly $250K over ~ 15 years.
Former employee makes some payments but stops after less than three years.
Theft? If so, what is the effect of the promissory note?
It seems to me that the promissory note has no effect on the theft. At the time the money was taken, it was taken without the effective consent of the owner and with the intent to deprive the owner of the property.
I don't think the promissory note changes that at all.
I'm not a lawyer but to me it seems like the note is evidence supporting victim's allegation that defendant confessed when confronted...
Also if the thefts were "pursuant to one scheme or continuing course of conduct" it can be indicted as a single offense under 31.09. Indicting it with this language should allow you to charge ALL of the thefts going back 15 years or however long as long as the most recent theft occurred within the 5 year limitations period. See: Vitiello v. State, 848 S.W.2d 885, 887-88 (Tex. App. - Houston 14th district 1993, pet. ref'd)
I'm guessing you have a limitations problem?
Some counties routinely reject theft cases where there has been some partial payments on the dubious theory that such payments make it a civil dispute.
The only support I have ever found for such a position, legally, is some dicta in an early 1960s case. I will post the cite when I find it. It may be that those who reject such cases are actually making a resource allocation decision: There are always plenty of thefts where the defendant never made any restitution, and the argument could be made that limited prosecution efforts are better spent on those cases.
We just finished a cattle theft trial. Cattle buyer took over 1,000 head and wrote a hot check. Primary defense was, Hey, I paid back most of the loss (through a bankruptcy order). Result after trial: Guilty.
|Powered by Social Strata|
© TDCAA, 2001. All Rights Reserved.