
    KUGLE v. STATE.
    No. 15787.
    Court of Criminal Appeals of Texas.
    April 19, 1933.
    E. T. Adams, of Dallas, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Judge.

Conviction is for misdemeanor embezzlement ; punishment being assessed at 20 days’ imprisonment in the county jail.

Appellant was indicted under the general embezzlement statute, which is article 1534, P. C. It was alleged that he was the agent of the Glen Rose Independent School District, Incorporated, and that he converted to his own use without the consent of said school district $5 which had come into his possession by virtue of his agency. '

Motion was made to quash the indictment upon various grounds, but we fail to discover any vice in it.

The evidence shows that appellant had received the nomination as tax collector of Som-ervell county, and that officers of the independent school district had made arrangements with him to collect the school tax due for the district, believing that it would be ⅛-sier to collect it in that way than to have an independent collector. The proof shows that the Southwestern Bell Telephone Company sent appellant a check for $46.97, included in which was $5 for the school district in question. It was the contention of the state that appellant passed said check to his credit and failed to account to the school district for the $5 due it.

We think it necessary to discuss but one question. In the charge the jury was authorized, if they found appellant guilty, to assess his punishment at imprisonment in the county jail not exceeding 2 years, and by a fine not exceeding $500, or by such imprisonment without fine. The penalty assessed was 20 days’ imprisonment in the county jail. The general embezzlement statute (article 1534) provides that the punishment for embezzlement shall be the same as if the accused had committed theft. By Acts of the 40th Legislature (1927), chapter 157, page 232, punishment for theft of property of the value of $5 or under was fixed at a fine not to exceed $200. See article 1422, as amended (Yernon’s Ann. P. C. art. 1422). The provisions of article 1534 fixes the penalty for embezzlement the same as if for theft. The undisputed evidence shows that the amount claimed to have been embezzled was only $5, the same as charged in the indictment. The penalty which the jury was authorized and. did assess is not permitted by the law.

The county court had jurisdiction to try the case. Patterson v. State (Tex. Cr. App.) 56 S.W.(2d) 458. But the jury was misdirected as to the penalty, to appellant’s injury. Hall v. State, 111 Tex. Cr. R. 381, 12 S.W.(2d) 1024; Keenan v. State, 120 Tex. Cr. R. 616, 48 S.W.(2d) 264; Lee v. State, 115 Tex. Cr. R. 429, 28 S.W.(2d) 559.

This was fundamental error, for which it becomes necessary to reverse and remand the judgment, and it is accordingly so ordered.  