
    MILLER v. STATE.
    (No. 6287.)
    (Court of Criminal Appeals of Texas.
    Feb. 22, 1922.
    Appellant’s Rehearing Granted May 17, 1922.
    State’s Rehearing Denied June 21, 1922.)
    1. Criminal law c&wkey;>!98 — Evidence in prosecution for embezzlement held not to sustain plea of former jeopardy in subsequent prosecution not shown to be for same amount.
    In prosecution of cashier for embezzlement from employer under Pen. Code 1911, art. 1416, a previous prosecution for embezzlement of a ' Certain amount on another date held not to sustain plea of former jeopardy, in the absence of a showing that the amount of the embezzlement for which he was being prosecuted had been included in the amount of the embezzlement for which he had been previously prosecuted.
    2. Embezzlement ⅞=»26 — Indictment charging embezzlement from employer held not bad for failure to name person who employed defendant on behalf of employer.
    In prosecution of cashier of corporation for embezzlement, under Pen. Code 1911, art. 1416, the indictment was not bad for failure to name the individual who acted for employer in making the contract of employment with the cashier, notwithstanding article 452, requiring the indictment to charge the things to be proved.
    3. Embezzlement <&wkey;26 — Indictment need not designate officer of corporation authorized to give or refuse consent to the conversion.
    Indictment charging cashier of corporation with embezzlement under Pen. Code 1911, art. 1416, held not bad for failure to designate the officer or agent of the corporation who was authorized to give or refuse consent to the conversion of the money.
    4. Embezzlement <&wkey;l — Constitutes the criminal misuse of something of which defendant has rightful possession.
    “Embezzlement” is the taking of something of which the defendant has rightful possession, it being the misuse of the property that is criminal.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, 'Embezzle — Embezzlement.]
    5. Embezzlement <&wkey;>41 — Recitals of cashier’s indemnity bond, describing capacity in which he was employed, held admissible.
    In prosecution of cashier for embezzlement, the recitals of the cashier’s indemnity bond describing the capacity in which he was employed held admissible.
    6. Criminal law <&wkey;396 (2) — Exclusion of recitals of defendant’s indemnity bond other than those describing capacity in which he was employed held not error.
    In prosecution of cashier for embezzlement, in which the recitals of his indemnity bond as to the capacity in which he was employed were admitted in evidence, the exclusion of other recitals in-the bond held not error.
    
      7. Embezzlement ©=^20 — Cashier of corporation helo “agent” within statute denouncing embezzlement.
    Cashier of corporation whose duty it was to receive money, keep an account thereof, and deposit it in the bank, and who was an officer of the corporation, held an “agent” of the corporation within Penal Code, art. 1416, denouncing embezzlement by an agent of a corporation.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Agent.]
    8. Criminal law <§=>371 (2) — 'Testimony as to other embezzlements by defendant cashier held admissible on issue of intent.
    In prosecution of cashier of corporation for embezzlement, testimony as to other embez-zlements committed by the cashier during his employment by the corporation held admissible on issue of intent of the cashier in failing to deposit funds which he was charged with having embezzled.
    9. Embezzlement ©==>44(1) — Evidence held to sustain conviction.
    Evidence held to sustain conviction of cash1 ier for embezzlement.
    On Appellant’s Motion for Rehearing.
    10. Criminal law ©=»198 — Cashier’s appropriation of different amounts on different dates held separate offenses.
    Where it was cashier’s duty to deposit daily the money of his employer which came into his hands by virtue of his employment, and on three separate days he appropriated three separate amounts, there were three separate offenses, and not one continuous offense, so that prosecution for embezzlement of one amount on one day did not preclude prosecution for embezzlement of another amount on other date under the doctrine of former jeopardy, even if the appropriation of the different amounts at the different times was in pursuance of a continuing intention on the part of the cashier to appropriate some part of the money that came into his hands each week or each month.
    11. Embezzlement ©=»48(1) — Instruction authorizing conviction of amount other than that charged in indictment held ground for reversal.
    In prosecution for embezzlement, instruction authorizing conviction for embezzlement of a sum other than that charged in the indictment at a time other than that specified in indictment held ground for reversal.
    Appeal from District Court, Bexar County; W. S. Anderson, Judge.
    E. L. Miller was convicted of embezzlement, and he appeals.
    Reversed and remanded.
    Horace E. Wilson and Chambers, Watson & Johnson, all of San Antonio, for appellant.
    R. H. Hamilton, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The appeal is from a judgment convicting appellant of the offense of embezzlement, and assessing his punishment at confinement in the penitentiary for a period of five years.

The indictment contains seven counts. Only one was submitted to the jury. It charged that appellant converted to his own use $200 of money belonging to the Brown Cracker Company, a corporation, of which he was agent.

Prior to his trial in the present case, appellant had been tried and convicted in two other cases in which he was charged with embezzlement of funds which he received during his employment as agent or clerk of the corporation named in the present indictment. See Miller v. State, 88 Tex. Cr. R. 69, 78, 225 S. W. 379, 12 A. L. R. 597. By reason of the cases mentioned, the appellant filed a plea of former jeopardy, and error is predicated upon the action of the court with reference to it. In each of the previous cases the indictment contained several counts, but only one was submitted to the jury. In one of the cases the charge was that on the 15th day of October, 1918, he embezzled $400; in the other it is charged that on the 16th day of December, 1918, he embezzled $750. The indictment in the instant case lays the date of the offense at the 29th day1 of August, 1918.

The court declined to submit the plea to the jury. In the colloquy between the counsel and the court, as set out in the bill, it is stated that the court overruled the plea, but did not strike it out; that he took judicial notice of the previous record in the eases, including the indictment, judgment, charge of the court, and the matters at present before it. If we fully comprehend the appellant’s contention with reference to this matter, it is that the embezzlement charged in the two cases which were tried in the present case related to funds which came into possession of the appellant by virtue of his confidential relationship with the Brown Cracker Company, to whom the funds belonged, and that under such circumstances the state could not carve several offenses, but would be confined to one. In our opinion, the fact that during appellant’s agency he received a number of sums of money on different occasions by virtue of his agency does not alone preclude the state from founding a prosecution upon more than one transaction. As we interpret the authorities to which appellant refers, they do not support the theory relied upon by him as stated above. What we regard as an accurate statement of the principle governing cases of embezzlement was made by Judge Clark in the case of Leonard v. State, 7 Tex. App. 444, in these words:

“Addressing ourselves to the’points presented, we are of opinion that notwithstanding the appellant may have had authority to make a sale of the cotton alleged to have been embezzled, yet if he sold the same with the formed intention to defraud the owner, and to convert it to his own use and benefit, he is as much guilty of embezzlement of the cotton as if he had no authority to make such sale. What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted. There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading; and the appellant in this case was charged in the usual form, that he ‘did embezzle, fraudulently misapply, and convert to his own use’ the particular property described. If he sold it with the honest purpose of delivering the proceeds to the owner, and after such sale conceived the fraudulent intention, he would not be guilty of embezzlement of the cotton at least. But if the sale was simply a means to effectuate his fraudulent purpose to convert the property to his own use — in other words, to steal it — it is as much an act of conversion as if he had shipped it clandestinely to a foreign port, and there disposed of it. This distinction is not unsupported by authority, and we are referred to none of a contrary effect.”

It is true that an agent might, at various times, receive sums of money for his principal, and retain it until a large sum had accumulated, and on the prosecution the facts show that he was guilty of but one offense, on the theory that the intent to convert was not formed until the time he appropriated the accumulated sum. This, however, does not necessarily follow, but depends upon the evidence in the particular cases. The time of forming the criminal intent to fraudulently convert the particular sum of money, together with the evidence showing its diversion from its intended purpose or the exercise over it of the right of ownership, inconsistent with that of the principal, or contrary to the nature of the trust upon which the funds are held, are proper subjects of inquiry, and important factors in leading to the solution of the question as to whether there had been committed one offense or more.

In Hamer’s Case, 60 Tex. Cr. R. 349, 131 S. W. 817, the conclusion of the jury that he embezzled the total sum of $2,050, which was placed in his hands to be loaned for his principal, was sustained, notwithstanding that, after placing the entire sum in the bank, he drew out at various times small amounts of it, finally withdrawing all. In deciding the case the court said:

“He had authority to draw this money out of the bank — all at once, or at different times. This act of withdrawal would not be a crime within itself, nor would the several withdrawals constitute different offenses. The first evidence that the state produced in this case of any act of fraudulent appropriation on the part of defendant was on the 17th day of December, 1902, when, for the first time, he makes a note purporting to be the act of one Ward for this money, and in order to deceive Miss Lewis he paid interest on that note for a year. We are constrained to hold that the act of embezzlement in this case took place on'the day when he attempted to manufacture testimony to cover up the money that had been intrusted to him by Miss Lewis, and that the different acts of withdrawal of the money from the bank were but continuous acts of his that might be circumstances to develop the criminal intent. When was the criminal intent formed in this case, according to the testimony? Was it when this money was withdrawn from the bank? We do not know. But the state has fixed it as on the 17th day of December, 1902, when he attempted to conceal from Miss Lewis the whereabouts of this money which she had intrusted to him.”

In the present case the evidence is sufficient to show that, by virtue of his agency, there came into the possession of the appellant, on the 29th day of August, 1918, a check for $2,268.90; that it was his duty on that day to deposit to. the credit of his employer at a bank in San Antonio, and make proper entries in his books of account for it, including a credit to the account of the customer for the full-amount thereof; that he mixed the check with others and money received for his principal in his capacity as agent, and made a deposit in- the bank of a sum $200 less than that ■ which was in his hands, belonging to his employer, and which he should have deposited. He at the same time credited the customer with $2,089.89, which, taking into account the cash discount to which the customer was entitled, was $200 less than he had paid. This occurred on August 29th. The items upon which the two indictments mentioned in his plea are founded were subsequent, namely, in October and November.

The appellant has not brought forward for our examination, by his bill of exceptions or otherwise, the matters that were before the trial court, and of which it took judicial notice at the time the plea of former jeopardy was overruled, save such as are set out in the plea. We therefore have no means of knowing whether there was in the other cases evidence which would have tended to show that the $200' in question in this case was retained by the appellant for some lawful reason and formed a part of the funds charged to have been appropriated in one or both of the other cases. In the absence of evidence to that effect, and in support of the ruling of the trial judge, we would have to assume that there was no such evidence offered to support the plea. As to his right to take judicial notice of the proceedings, we find instances in which this practice has been approved in passing upon pleas of former jeopardy. Johnson v. State, 29 Ark. 31, 21 Am. Rep. 154; State v. Bowen, 16 Kan. 475, and analogous cases in Farrar v. Bates, 55 Tex. 193; Lavender v. Hudgens, 32 Ark. 763; Withaup v. United States, 127 Fed. 530, 62 C. C. A. 328. Whether this is a sound practice we deem it unnecessary to inquire in the instant case, for the reason that the effect of the colloquy between the trial judge and appellant’s counsel touching the action of the court upon the plea of former jeopardy is to show that the appellant, in support of his plea, proposed to introduce.the records in the other cases, and the court indicated that with it he was familiar, and that it would he considered. The qualification of the bill, in connection with the other recitals therein, indicates that the trial judge considered the plea and such evidence as the appellant proposed to introduce, and upon such consideration determined that there was no issue of fact to be submitted to the jury. We find nothing in the bill leading us to conclude that the facts before it required different action, or that the procedure pursued by the court was wrong. The evidence in the instant case appears to negative the idea that the transaction relied upon — that is, the embezzlement of the |200 — was so connected with or modified by other transactions as to preclude the state from carving it out as a separate offense. The method of procedure by which the appellant retained the $200 and so adjusted his books that the shortage would not appear upon them were circumstances pointing to a fraudulent intent. It was shown that, under his agency, it was not contemplated that he should retain the money in his possession, but should deposit it daily to the credit of his principal. The retention of it, in connection with the manipulation of the entries in the books mentioned to conceal his possession, is also of weight on that issue. His fraudulent intent is further suggested by the introduction in evidence of numerous other similar transactions by which he was able to retain numerous sums of money belonging to his employer, and so manipulate the entries in the books as to conceal the fact. 3 Bishop’s New Grim. Proc. p. 1415, § 337. There was no testimony to the effect that he had without fraudulent intent accumulated or permitted the $200 in question and other funds of his employer to accumulate, subsequently forming the intent to appropriate them. Some such testimony would have been essential to' require the submission of the plea of former jeopardy to the jury.

In the' brief of appellant reference is made to numerous cases which deal with the consequences of transactions upon an indictment containing several counts in which there is a conviction upon one of them and a subsequent effort to retry the case upon one or more of* the others. See Mizell v. State, 83 Tex. Or. R. 305, 203 S. W. 49. We confess that we are unable to perceive the pertinency of the principle controlling in those cases to the question now presented by the appellant for solution. If this was a retrial in any one of the previously tried cases, and an effort put forth to conduct the prosecution upon one of the counts in the indictment which was not submitted on the former trial, we would comprehend the relevancy of the authorities with which the appellant has furnished us upon this subject.

It is urged that the indictment is bad for the want of an allegation naming the individual or person who acted for the Brown Cracker Company, a corporation, in making the contract of employment with the appellant, and that it is also bad in failing to designate which officer or agent of the corporation was authorized to give or refuse consent to the conversion of the money. In defining embezzlement the statute says:

“If any * * ⅜ agent * * * of any incorporated company * * * shall embezzle, fraudulently misapply or convert to his own use, without the consent of the principal or employer, any money * * * of such principal or employer, which has come into his possession or be under his care by virtue of such * * * agency, ⅜ * * he shall be punished.” Penal Code, art. 1416.

The first point does not impress us as sound, or as based upon any substantial reason, nor have we been referred to or found any authority which, to our mind, sustains it. It is true that the statute (article 452) declares that things that must be proved should be charged in the indictment. It is necessary to prove that the appellant was an agent of the corporation, but the criticism goes, as we coneeive it, to the manner of proof. With appellant’s view of the second point, we are not in accord. In fact, it seems quite doubtful whether there could be an agent Of the corporation authorized to give consent to the fraudulent conversion of its property. An agent so acting would seem to render himself particeps criminis in’ the fraudulent transaction. Concerning the cases of theft and swindling to which appellant refers, both the statute and principle controlling its interpretation seem to us to suggest a distinction. In theft generally the possession is interfered with without the consent of the rightful possessor. In embezzlement the possession is in the accused. His possession is rightful. It is his misuse of the property that is criminal. See Leonard v. State, supra. In swindling the offense, in substance, consists in obtaining property by false representation, believed by the person by whom it is made. It would seem that the reason for requiring that the indictment name the individual who was thus deceived would be more cogent in that case than the want of consent in a case of embezzlement, though it is not clear that, even in a swindling indictment, the omission of the averment would be fatal. Such intimation in Pruitt v. State, 83 Tex. Cr. R. 148, 202 S. W. 81, was not necessary in the decision of the case.

Appellant was under an indemnity bond. The recitals in the bond describing the capacity in which appellant was employed were material, and were admitted in evidence. We discern no error in excluding the other recitals in the bond. Appellant, neither by argument nor authority, has advanced any reason which suggests to us the relevancy of other parts of the bond or the injury to his case in excluding them.

There was evidence that the appellant was serving as cashier. The contract of employment was made with the manager, who also had authority to discharge. The corporation dealt in merchandise which was sold to customers, and the funds received, whether in money or checks, came to the appellant. It was his duty to receive the money, keep an account of it, and deposit it in the bank, but he was without authority to withdraw it therefrom. These being his duties, and the Brown Cracker Company being his employer, the fact that • he was called “cashier” was not in any sense in conflict with his character as an agent. There is no suggestion that he was an officer of the corporation. The term “agent” includes “cashier.” See 1 Bouvier’s Baw Dictionary, Rawles’ Revision, p. 116; also Century Dictionary; Miller v. State, 88 Tex. Cr. R. 69, 225 S. W. 379, 12 A. B. R. p. 603 and note. The evidence affords no basis for an instruction upon the theory that appellant’s connection with his principal was other than an agent. There was no error in refusing his request for such an instruction.

The intent of the appellant in failing to deposit the funds in question in the instant case being an issue, his similar conduct with reference to other like transactions was relevant. In admitting proof of other embezzle-ments during the employment of the appellant, the trial court was, in our opinion, not in error. Hennessy v. State, 23 Tex. App. 340, 5 S. W. 215; Fry v. State, 83 Tex. Cr. R. 506, 203 S. W. 1096, and authorities listed. The court limited this testimony in a paragraph of his charge, which was so framed as to make plain to the jury the purpose for which the collateral matters were admitted in evidence, and fully safeguarded the rights of the appellant against their misuse. In the paragraph the jury was specifically told that they might not use such evidence at all unless the other embezzlements were proved beyond a reasonable doubt, and added:

“The testimony as to other embezzlements (if any) was admitted by the court for the sole purpose of showing system (if any), in order to show the intent of the defendant (if it does do so), and such testimony was not admitted by the court for the purpose of showing the guilt (if any) of the defendant of the alleged embezzlement (if any) of any other sum or sums of money belonging to said Brown Cracker & Candy Company.”

The evidence is sufficient to sustain the verdict, and we are not able to perceive any faults in Ihe procedure which authorize the reversal of the judgment.

It is therefore affirmed.

On Appellant’s Motion for Rehearing.

BATTIMORE, J.

Believing the original opinion on rehearing to have been based on a misconception of appellant’s contention, same is withdrawn.

Appellant urges that we erred in upholding the refusal of the trial court to submit his plea of jeopardy to the jury. Without going into unnecessary details, the record discloses that prior to the trial in the instant case appellant had been tried and convicted in two other cases wherein he was charged with embezzlement of certain sums of money from the Brown Cracker & Candy Company, the same party from whom he is charged with embezzling funds in the instant case. Upon the theory and belief that embezzlement is a continuous offense where the employment is continuous, appellant prepared a plea of jeopardy based upon the fact that the indictments in the two eases formerly tried and mentioned above each contained seven counts, as does the indictment in the instant case, and that on the trial in each of said two other cases he had pleaded not guilty to all the counts in the indictment, and that, after the evidence was heard, the trial court submitted to the jury only the seventh count in each case. This, according to appellant’s contention, amounted to an acquittal of the offense charged in each of the other counts of said indictment, and appellant’s contention further was that, if the offense of embezzlement be continuous where the employment was continuous, he was entitled to introduce before the jury upon the instant trial proof of the fact that he had pleaded- not guilty to all of the counts in said indictments which seemed to have been abandoned and had been tried on said first six counts therein and acquitted, and that, upon making such proof, he would be entitled to an acquittal herein upon the theory of former jeopardy.

The trial court refused to permit appellant to read his plea to the jury, or to introduce evidence in support thereof, the trial in each of the former cases having been had in the same court, and the judgments and records in said former trials being within the judicial knowledge of the court below. The soundness of appellant’s proposition seems to rest entirely upon the question as to whether, under the facts in this case and those formerly tried, the offense of embezzlement be a continuous offense, so as that the plea of jeopardy, if proven as alleged, would have operated in law to require the acquittal of appellant in the instant case, or be sufficient to justify a jury in so acquitting him if- the issue had been submitted to them by the court.

Appellant was charged in the instant case with embezzling $200 on Angust 29, 1918, from the Brown Cracker & Candy Company, of which concern he was an agent. He was charged in one of the other cases mentioned with the embezzlement of- $757.70 of said company on December 16, 1918, and in the other of said eases with embezzling the sum of $400 from the same company on October 15, 1918. As stated above, unless there be that in the employment of appellant and his relation to his employer and to the moneys charged to have been embezzled which would make of these transactions a continuous offense, the trial court did not err in declining to hear the plea of jeopardy, or to submit same to the jury. As supporting h'is contention, appellant has cited 20 Corpus Juris, p. 429. Tne text of this work referred to is as follows:

“An embezzlement may consist of a continuous series of conversions, or the conversion of money or property received at different times from different sources.”

The compilers of Corpus Juris cite as supporting this text Powell v. State, 82 Tex. Or. R. 168, 198 S. W. 317, and Hamer v. State, 60 Tex. Cr. R. 341, 131 S. W. 813. A careful examination of Powell’s Case shows nothing justifying the above proposition. The facts in that case showed that the accused came into possession at one time of $570.85 belonging to his principal, and that when he was called on to remit he sent $197.-10, and indicated that the remainder had not been collected by him. The entire amount of money collected had been deposited by him in his name in the bank and checked out upon his debts. 1‘alse statements regarding his collection of said money were also shown. The fact of his receipt of the amount of $373.75 belonging to his principal and his failure to pay same to the party to whom it belonged, coupled with the false statements above mentioned, was held to amply support his conviction for embezzlement of the $373.75. The Hamer Case, supra, is discussed in our original opinion. In addition to what we there said, we call attention to the fact that the amount of $2,050 of his principal’s money was placed in the hands of the accused by her and deposited in the bank in his name. He had full authority to loan it for his principal in such amounts and at such times, apparently, as suited him. No limitation on his power to draw from the bank all or any part of said money was shown. It happened that on the day alleged in the indictment he drew from the bank less than $50, and on his trial he claimed that such separate withdrawal from the bank evidenced a separate conversion, and that he was only guilty, if at all, of a misdemeanor. On his motion for rehearing he contended that, because the first amount drawn out of the bank was at a date beyond the period of limitation, he was protected from prosecution by virtue of that statute. This court declined to sanction his proposition that the question of fraudulent appropriation was to be governed by the date or amount of any particular withdrawal of money from the bank, and held that, he being charged with embezzlement of the entire amount, and the question of when he conceived and executed the intent to appropriate the money being for the jury, proof that at a period within the statute of limitation he made a false note to his principal in an effort to cover up his defalcation would support the judgment of guilt of embezzlement, and that the date of the making of the note might be regarded as the time of the conversion.

In addition to the authorities cited in Corpus Juris, supra, appellant insists that the case of Lawshe v. State, 57 Tex. Cr. R. 32, 121 S. W. 865, supports his contention. Law-she was the agent of a railroad company. He was checked up by an auditor, and found to be more than $500 short. On his trial for the embezzlement of said amount he asked that the jury be charged that, before he could be found guilty of a felony, -the proof must show that at one time he appropriated more than $50. This court said in its opinion that the proof for the state strongly indicated that at least $300 of the money was embezzled at one and the same time, as his books showed that $300 came in on one day and no remittance was made. Apparently Lawshe did not testify to any embezzlement of smaller amounts than $50 on any day or occasion, and this court simply held there was no evidence calling for the charge sought. The only suggestion in the opinion in the Lawshe Case which could be taken to support appellant’s contention here is the concluding statement in that part of the opinion discussing the proposition we have just mentioned. This court said: .

“The employment and all the transactions were continuous, nor was the issue of an embezzlement of less than $50 raised. Taylor v. State, 29 Tesas Crim. App. 466.”

By this statement in the opinion, as we understand it, was meant that Lawshe was not employed for a single day nor for a single transaction, but for many days, and to collect and remit all moneys of the company which came into his hands; and, it being shown that the shortage was in excess of $500, and by reason of the continuity of the relationship it being impracticable for the state to fix any time or amount for any separate embezzlement, it might allege and prove the embezzlement of the entire amount, and this would suffice. If Lawshe had desired to prove that he had appropriated the amounts of the shortage in separate transactions, each of which was for a less amount than $50, we apprehend the trial court would not have refused the charge asked. Under article 52 of our Penal Code it is provided that, if the state has made out its case, it devolves on the accused to show facts which excuse or justify him. Many authorities are cited by Mr. Yernon under said article affirming that, when the defensive matter is peculiarly within the knowledge of the accused, the burden of proving same rests on him. That the facts rebutting the charge of felony embezzlement proven by the state in the Lawshe Case, and reducing it to a misdemeanor, if such facts existed, were wholly within ’Lawshe’s knowledge would seem clear. Appellant also mentions the Taylor Case, supra, but we have examined it, and are unable to find support therein.for the proposition under discussion.

The facts in the instant case are such as to entirely negative the soundness of the proposition that the appropriation by this appellant at different times of different sums of money belonging to his employer constitute a continuous offense, even though the employment was continuous, and, in our opinion, even though it might be conceded for the sake of announcing a rule that each appropriation was in pursuance of a continuing intention on the part of appellant to appropriate some part of the moneys that came into his hands each week or each month. It was appellant’s duty to deposit daily the moneys of his employer which came into his hands by virtue of such employment. The money was to be put in the bank in his employer’s name. Whether appellant made up his mind on three several days to appropriate the three several amounts referred to in the instant case, and the other two mentioned in his plea of jeopardy, or whether he had previously made up his mind to abstract from such moneys as came into his hands varying sums on different dates, would not seem to us to affect the fact that each'sum appropriated was in law a separate embezzlement, and punishable as such.

In one paragraph the court charged the jury as follows:

“Now, if you believe from the evidence, beyond a reasonable doubt, that the defendant, E. L. Miller, was agent of the Brown Cracker & Candy Company, a corporation, and that he did, in the county of Bexar and state of Texas, on or about the 2£>th day of August, A. D. 191S, fraudulently misapply or convert to his own use, without the consent of his principal or employer, any money of his said principal or employer Brown Cracker & Candy Company, a corporation, on the date alleged in the indictment, to wit, the 29th day of August, A. D. 1918, for which said alleged offense he is alone upon trial, and none other, for you cannot convict the defendant of any other offense than that alleged in the indictment, unless you believe him guilty of said offense beyond a reasonable doubt, and you further believe, beyond a reasonable doubt, that each of said four essential requisites to constitute the offense of embezzlement, as above sec forth in this charge, have been established by the testimony, beyond a reasonable doubt, then, and in that event, you will find the defendant guilty of embezzlement.”

Our attention was not particularly directed to this paragraph of the charge when we prepared the original opinion. There were in evidence facts pertinent to and showing embezzlement by appellant of other sums of money from his employer, at other times, and, as we read the paragraph of the charge just quoted, it seems to plainly tell the jury that they cannot convict the defendant of any other offense than that alleged in the indictment unless they believe him guilty of such offense beyond a reasonable doubt, and unless they believe tbe four elements of tbe offense have been established. This is manifestly erroneous. Appellant could not be convicted herein for any other offense than that alleged in the instant indictment, no matter what the jury may have believed. This is the only part, of the charge which attempted to apply the law to the facts. It is directly contradictory of other parts of the charge, and we cannot say which part the jury selected for their guidance. Exception was properly reserved to said charge.

The motion for rehearing will be granted, tbe affirmance set aside, and the cause reversed and remanded.

On State’s Motion for Rehearing.

BIORROW, P. J.

We are not able to bring our minds in accord with the contention of the state that the portion of the charge of the court, which is set out in the opinion of this court in reversing the judgment was a correct one. On the contrary, we regard it as subject to the objection leveled against it upon the trial and discussed in the opinion of this court in granting appellant’s motion for rehearing. In our judgment there was therein made a correct disposition of the appeal.

The motion for rehearing is therefore overruled. 
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