
    CONNELLY v. STATE.
    (No. 7248.)
    (Court of Criminal Appeals of Texas.
    Feb. 14, 1923.)
    1. Criminal law i&wkey;>878(5) — Verdict of “guilty as charged” following submission of one of two counts of indictment is sufficient.
    Where the indictment contains two counts, and the trial court submits only one, a verdict finding accused, “guilty as charged” is sufficient, being responsive to the charge and count submitted.
    2. Embezzlement <&wkey;44(6) — Evidence held sufficient to show owner’s want of consent to misappropriation of funds.
    A bank president’s testimony that neither he nor any of the bank officials gave the cashier permission to embezzle, misapply, or appropriate a sum turned over to him in his capacity as an officer of the bank, together with the fact that on discovery of- irregularities he was discharged from his position, and the money returned to the depositor on investigation of the facts, sufficiently showed want of consent by the owner to such misappropriation.
    Appeal from District Court, Hardin County ; J. L. Maury, Judge.
    M. E. Connelly was convicted of embezzlement, and he appeals.
    Affirmed.
    Coe & Briggs, of Kountze, and A. D. Lipscomb, of Beaumont, for appellant.
    Chap H. Cain, Dist. Atty., of Liberty, Ned, B. Morris, of Houston, and R. G. Storey, Asst. Atty. Gen., for the State.
   LATTIMORE, J.

Appellant was convicted in the district court of Hardin county of embezzlement, and his punishment fixed at two years in the penitentiary. This is a companion case to M. E. Connelly v. State (No. 7247) 248 S. W. 340, opinion handed down January 24, 1923. Practically all the contentions made in the instant ease were disposed of by us in our opinion in the companion case referred to.

Where the indictment’ contains two counts, and the trial court submits only one, a verdict finding the accused “guilty as charged” is sufficient. Such verdict could only he held responsive to the charge of the court and to the count in the indictment submitted to the jury.

In the first count in said indictment appellant was charged with embezzlement of $600, the property of the Citizens’ National Bank of Sour Lake, Tex.; in the second count he was charged with embezzlement of $600, the property of Ambrose Jackson. The court submitted to the jury appellant’s guilt as predicated only upon his embezzlement of the property of said bank. Complaint is made that the want of consent of said hank is not made to appear in the record. We are unable to assent to the soundness of this contention. The president of the.bank testified that neither he nor any of the bank officials gave to appellant permission to embezzle, misapply, or appropriate $600 of the bank’s money. Appellant was cashier of said bank at the time of the alleged offense, and $600 was turned over to him in his said capacity as an officer of the bank, and it appears from the record without dispute that he did not place said moneys with the other money of the bank, and that no entry of such deposit was ever made by him. Thereafter, and upon discovery of irregularities, appellant was discharged from said position, and, upon investigation of the facts concerning the deposit of said money, the bank paid to Mr. Jackson, the depositor, the sum of $600. We think the testimony sufficiently showed the want of consent on the part of the alleged owner to the misappropriation by appellant.

Ail of the other questions raised by appellant were fully discussed in the companion case, and will not be here further elaborated.

Finding no error, in the record, the judg-' ment of the trial court will be affirmed. 
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