
    GILLIARD v. STATE.
    (No. 3886.)
    (Court of Criminal Appeals of Texas.
    Jan. 12, 1916.
    On Motion for Rehearing, Feb. 9, 1916.)
    1. Criminal Law <©=>1086 — Appeal—Record
    —Sentence.
    The record must show a sentence, the final judgment, to give the appellate court jurisdiction.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2736-2709, 2770, 2772, 2794; Dec. Dig. <@=>1086.]
    On Motion for Rehearing.
    2. Embezzlement <@=>32 — Indictment.
    An indictment for embezzlement being required to allege defendant’s agency, and that he was charged with the duty of receiving the property, the receipt thereof, its receipt by virtue of his agency, and its embezzlement, an indictment, charging that defendant was agent of a church, that certain persons were trustees thereof, that as such trustees they had the custody and control and were the special owners of funds, and that defendant embezzled money which was the property of said trustees as such special owners, and which had come into the possession, and was under the care, of defendant, by virtue of his said agency, is insufficient, as it should have alleged not only the ownership by such trustees, as such, and their possession and control of the money, but that it was received by defendant from them in some fiduciary relation, and that thereafter he embezzled and appropriated it to his own use.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 47-50; Dec. Dig. <@=>32.]
    Appeal from Criminal District Court, Williamson County; A. S. Fisher, Judge.
    J. H. Gilliard was convicted, and appeals.
    Reversed and dismissed.
    J. F. Taulbee, of Georgetown, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

This conviction was for embezzlement. An inspection of the record discloses that it does not contain a sentence or final judgment. For this reason the jurisdiction of this court has not attached, and the appeal as presented by this record will be dismissed.

On Motion for Rehearing.

On a former day of this term, the appeal herein was dismissed because the record failed to show that appellant had been sentenced in the trial court. Without this sentence, which is the final judgment, the jurisdiction of this court could not attach. Since the appeal was dismissed, a motion has been filed for rehearing, with the correct certificate and copy of the sentence in the trial court showing the fact that appellant was properly sentenced; but that part of the record was omitted in the transcript for this court. With this satisfactory evidence before the court, that appellant was sentenced in the trial court, and that therefore the jurisdiction of this court does attach, the judgment dismissing the appeal is set aside and the cause reinstated, and the cause will now be heard upon the questions involved in the appeal.

Appellant was convicted of embezzlement, his punishment being assessed at two years’ confinement in. the penitentiary.

The first count in the.indictment alone was submitted to the jury by the charge of the court. Omitting formal parts, this count charges that:

Appellant was “the clert, agent, servant, employe, and officer of Bit. Cavalry Baptist Church at Taylor, Tex., a voluntary association of persons, and Wm. Harrison, A. Nelson and J. S'. Slider were trustees then and there of said Mt. Cavalry Baptist Church, and as such trustees they had the custody and control and were the special owners of the fund and property and money hereinafter mentioned, and the said J. H. Gilliard did then and there fraudulently embezzle, misapply, and convert to his own use without the consent of the said Wm. Harrison, A. Nelson, and J. S. Slider, or either of them, $350 in money of the value of $350, which said money was the property of said Wm. Harrison, A. Nelson, and J. S. Slider, special owners as above alleged, and which said money had come into the possession and was under the care of the said J. H. Gilliard by virtue of his said office, agency, and employment.”

It will be noticed that this indictment does not charge any fiduciary relation between Harrison, Nelson, and Slider and the defendant. In order to constitute a party guilty of embezzlement, the indictment must allege, and the evidence show, four things: First, the defendant’s agency, and that he was charged with the duty of receiving the property; second, the receipt of the property; third, its receipt by virtue of his agency; and, fourth, its embezzlement. Webb v. State, 8 Tex. App. 310; Epperson v. State, 22 Tex. App. 694, 3 S. W. 789; Leonard v. State, 7 Tex. App. 417; Griffin v. State, 4 Tex. App. 390; State v. Johnson, 21 Tex. 775; Brady v. State, 21 Tex. App. 659, 1 S. W. 462; Taylor v. State, 29 Tex. App. 466, 16 S. W. 302. In order to have made this indictment sufficient under the law, it should have alleged, not only the ownership by these three parties named as trustees and their possession and control of the money, but it should have alleged that the money was received by appellant from them in some fiduciary relation as agent, employs, etc., and that, after alleging the fact of this fiduciary relation and agency, he then subsequently after receiving the money embezzled and appropriated it to his own use. This indictment does not so charge, and under these authorities we are of opinion that the indictment is insufficient to charge the offense of embezzlement as stated in the first count. This being the only count submitted to the jury by selection of the trial judge, the other counts are not noticed.

There is another question in the case of some moment. This can be avoided upon the filing of another indictment, and it is just simply mentioned in passing. The indictment charged the property to belong to a Baptist Church known as Mt. Cavalry Baptist Church. The evidence, without any dispute or question, shows the name of the church to be Mt. Calvary and not Mt. Cavalry. The pleader, if another indictment is found, should take time and precaution to allege the proper name of the real owner or the Baptist Church, which is Mt. Calvary, and not Mt. Cavalry. This -latter question is raised in various ways both on objection to testimony and in charges, and in fact presented in every way it could be presented. We have not discussed this, though a serious question, for the reason of the fact it will be cured upon another trial, if another indictment is found.

Believing the indictment is insufficient in regard to the matters pointed out, the judgment will be reversed, and the prosecution ordered dismissed. 
      <@=>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
     