
    TANKERSLEY v. STATE.
    (No. 10516.)
    (Court of Criminal Appeals of Texas.
    Nov. 3, 1926.)
    1. Embezzlement <&wkey;26 — Indictment held to charge misapplication of city funds by assessor (Pen. Code 1925, art. 95).
    Indictment of city assessor and tax collector of Fort Worth, charging that he took, misapplied, and converted* $1,284 belonging to city, which had come into his custody by virtue of such office, held to charge misapplication of city funds, under Pen. Code 1925, art. 95.
    2. Embezzlement <&wkey;32 — Indictment for misapplication of city’s funds must show that officer of named city converted city property of value sufficient in cases .of theft, which he possessed by virtue of office (Pen. Code I925j art. 95).
    Indictment charging offense of misapplication of city funds, under Pen. Code 1925-, art. 95, must show that accused was officer of some named city or employee of such officer, that money or property belonging to city of description and value sufficient in case of theft or embezzlement had come into his custody by virtue of office, and that he had thereafter fraudulently taken, misapplied, and converted it.
    Appeal from Criminal District Court, Tar-rant County; Geo. E. Hósey, Judge.
    Albert Tankersley was convicted of misapplication of funds belonging to the city of Fort Worth, and he appeals.
    Affirmed.
    McLean, Scott & Sayers, of Fort Worth, for appellant.
    Sam D. Stinson, State’s Atty., of Austin, and Robt. M. Lyles, Asst. State’s Atty., of Groesbeek, for the State.
   LATTIMORE, J.

Appellant was convicted in the criminal district court of Tarrant county of misapplication of funds belonging •to the city of Port Worth, and his punishment fixed at two years in the penitentiary.

Appellant filed a motion- to quash the indictment generally, upon the ground that same charged no offense against the laws of this state, was vague, indefinite, and uncertain, and particularly for the reason that neither count of said indictment contained specific averments in substance or effect that appellant was in or of the class of persons whose acts are made penal by the statute. The prosecution herein was under article &5, 1925 P. C., which is as follows:

“If any officer of any county, city or town, or any person employed by such officer, shall fraudulently take, misapply, or convert to his own use any money, property or other thing of value belonging to such county, city or town, that may have come into his custody or possession by virtue of his office or employment, or shall ■secret the same with intent to take, misapply or convert it to his own use, or shall pay or deliver the same to any person knowing that he is not entitled to receive it, he shall be confined in the penitentiary not less, than two nor more than ten years.”

The indictment in its charging part is as follows:

“Was then and there the assessor and collect - ■er of taxes in and for the city of Port Worth, Tarrant county, Texas, said city being then and there an incorporated city under the laws of the state of Texas, and the said Albert Tankers-ley did then and there fraudulently take, misapply, and convert to his own use $1,284 in money, of the value of $1,284, belonging to said city, and which said money had theretofore come into and then and there was in custody and possession of the said Albert Tankersley by virtue ■of his said office. And the grand jurors aforesaid, upon their oaths aforesaid, do further present, in and to the criminal district court of Tar-rant county, Texas, that heretofore, on the 28th day of March, 1923, in the county and state aforesaid, one Albert Tankersley, hereinafter ■styled defendant, was then and there the assessor and collector of taxes in and for the city ■of Port Worth, Tarrant county, Texas, said city being then and there an incorporated city under the laws of the state of Texas, and the said Albert Tankersley did then and there fraudulently take, misapply, and convert to his own use •one check, of the tenor as follows, to wit: ‘Miteh-ell-Greer Company, Diamonds and Jewelry, No. 10705. Port Worth, Texas, 3/26/1923. Pay to the order of Albert Tankersley, Coltr., ■$1,284.00; Twelve Hundred Eighty-Pour Dollars. Mitehell-Greer Company, by J. G. Greer. To Parmers’ & Mechanics’ National Bank, Port Worth, Texas’ — which said check was then and there of the value of $1,284, and which said ■check then and there belonged to and was the property of said city, and which, said check had theretofore come into and was then and there in the custody and possession of the said defendant by virtue of his said office.”

The elements necessary under the statute to be alleged in the indictment in a case such as the one before us are that the accused was an officer of some named city, or else an employee of such officer, that money or property of description and value such as would suffice in an ordinary case of theft or embezzlement, belonging to said city, had come into possession of and was in the custody of such officer or employee by virtue of his office or employment, which said money or property was thereafter fraudulently taken, misapplied, and converted to the use of such officer or employee. Analysis of the indictment before us in this case satisfies our minds that it contains each and all of .the allegations necessary.

We are not in accord with appellant’s contention that the authorities cited in his brief hold to the contrary. This is the only contention made upon the trial, and upon the overruling of his motion to quash the indictment appellant appears to have entered a plea of guilty.

Having disposed of the matters contained in the motion to quash, and there being, no other issue raised, and finding no error in the record, the judgment will be affirmed. 
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