
    FERRELL v. STATE.
    (Court of Criminal Appeals of Texas.
    Dec. 11, 1912.
    On Motion for Rehearing, Jan. 22, 1913.)
    1. Embezzlement (§ 33) — Indictment—Sufficiency.
    Pen. Code 1911, art. 96, punishes any officer who is by law the receiver of the public money, “who shall fraudulently take or misapply, or convert to his own use any part of such public money, or secrete the same with intent to take, misapply, or convert it to his own use.” The first count alleged that accused, a county tax collector, did “unlawfully and fraudulently take, misapply, and convert to his own use” taxes collected, and the second count alleged that he did “unlawfully and fraudulently ‘secret’ the same with intent to take, misapply, and convert to his own use.” Held, that the first count was sufficient under the statute.
    [Ed. Note. — For' other cases, see Embezzlement, Cent. Dig. §§ 51, 52; Dec. Dig. § 33.]
    2. Indictment and Information (§ 79)— Sufficiency.
    Since the two words are substantially equivalent and convey the same idea, the second count was sufficient, notwithstanding the use of the word “secret” instead of “secrete.” In-view of Code Cr. Proc. 1911, art. 460, providing that words defining an offense need not be strictly followed in the indictment if they include the sense of the statutory -words, and making an indictment sufficient if it enables one of common understanding to know what is meant, and gives notice of the offense charged, article 461 permitting an indictment to use general terms which in common language embraces the special term used in the statute, and article 453 only requiring such certainty in the indictment as will enable accused to plead the judgment in bar of another prosecution.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. §§ 209-214; Dec. Dig. § 793
    3. Words and Phrases — “Seokete” — “Secret.”
    Webster defines “secrete” as “to deposit in a place of hiding, to hide, to conceal”; and defines the adjective “secret” as “hidden, concealed”; and the noun as “something studiously concealed, a thing kept from general knowledge, what is not revealed.” The Century Dictionary defines the verb “secrete” as “to make or keep secret, hide, conceal, remove from observation, or the knowledge of others”; and defines the adjective “secret” as “set or kept' apart, hidden, concealed”; and the noun as “something studio'usly hidden or concealed, a thing kept from general knowledge, what is not or should not be revealed.”
    [Ed. Note. — For other definitions, see Words and Phrases, vol. 7, p. 6380.]
    4. Embezzlement (§ 38) — Prosecution—Admission of Evidence.
    .In a prosecution of a tax collector for fraudulently converting public money, one of accused’s deputy collectors could testify that he had seen accused take money from the taxes collected for his personal use, if he knew that he did so.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 66, 66; Dec. Dig. § 38.]
    5. Embezzlement (§ 38) — Prosecution—Admission of Evidence.
    In a prosecution of a tax collector for wrongfully converting taxes collected, in which accused testified that he had stated that certain others stole the money, he was properly asked the time when the money was stolen by the others and the amount, and could explain why he could not give that information.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 61, 65, 66; Dec. Dig. § 38.]
    6. Criminal Law (§ 1166%) — Appeal — Harmless Error.
    Any impropriety of the trial judge in making a remark was harmless where it was not loud enough for the jury to hear it.
    [Ed. Noté. — For other cases, see Criminal Law, Cent. Dig. §§ 3114-3125; Dec. Dig. § 1166%.]
    7. Embezzlement (§ 42) — Prosecution—Admission of Evidence-Use of Monet.
    In a prosecution of a tax collector for appropriating money collected to his own use, the state could show that he gave various sums to certain women about the time he was charged with having embezzled the state’s money, and to whom he gave it.
    [Ed. Note. — For -other cases, see Embezzlement, Cent. Dig. •§ 64; .Dec. Dig. § 42.]
    
      8. Criminal Law (§ 429) — Admission of Evidence.
    In a prosecution of a tax collector for embezzling, accused’s reports to the state comptroller were properly admitted in evidence, even though some of them were signed only by his deputies.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1018, 1020; Dec. Dig. § 429.]
    9. Embezzlement (§ 28*) — Prosecution — Proof — Variance — ‘ ‘ Current Money op the United States” — “Money.”
    The phrase “current money of the United States,” as used in an indictment for embezzlement by tax collector, charging conversion to his own use of eueh money, includes gold, silver, copper or other coin, bank bills, government notes, or other circulating medium which is current as money; Pen. Code 1911, art. 1419, providing that the term “money,” as used in the chapter on embezzlement, shall include, hesides coin, bank bills, government notes, or other circulating medium.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 41, 42; Dee. Dig. § 28.
    
    For other definitions, see Words and Phrases, vol. 5, pp. 4554-4565; vol. 8, p. 7625.]
    10. Embezzlement (§ 48) — Instructions.
    Where, in a prosecution of a tax collect- or for embezzlement, the only defense was that either the depository banks or accused’s deputies, and not accused, embezzled it, the court properly charged that, if the money was in fact appropriated by others besides the accused without his knowledge or consent, the jury could not convict accused nor consider against him the fact of an appropriation by others.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 72-75; Dec. Dig. § 48.]
    11. Criminal Law (§ 784) — Charges—Circumstantial Evidence — Necessity.
    Where the conviction depended only partially on circumstantial evidence, the court was not required to charge thereon.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1883-1888, 1922, 1960; Dec. Dig. § 784.]
    12. Criminal Law (§ 1038) — Instructions— Request — Necessity.
    That a charge on circumstantial evidence was not full enough cannot be assigned as error by accused where he did not request a fuller charge.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. § 2646; Dec. Dig. § 1038.]
    13. Criminal Law(§ 878) —Appeal—Harmless Error.
    Where the verdict is general, and one of the counts of an indictment is good and supported by the evidence, 'a verdict of guilty will be attributed to that count, making it immaterial that the other counts are bad.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 2098-2101; Dec. Dig. § 878.]
    Appeal from District Court, Jones County; Jno. B. Thomas, Judge.
    N. G. Ferrell was convicted of fraudulently converting public money, and appeals.
    Affirmed.
    Brooks & Brooks and C. C. Ferrell, all of Anson, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For other oases see same topic and section NUMBER in Dec. Dig.'& Am. Dig. Key-No. Series & Rep’r Indexes
    
    
      
      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes
    
   PRENDERGAST, J.

Appellant was the tax collector of Jones county for the term beginning after the general election in November, 1908, and held the office until some time in the latter part of July, 1910, when he resigned. He was indicted by the grand jury of Jones county for misapplying the money of the state which he had collected as taxes, and given the lowest penalty. The law (article 96, Penal Code) under which the conviction was had is, “If any officer of the government, who is by law a receiver or depositary of public money, * * * shall fraudulently take, or misapply, or convert to his own use, any part of such public money or secrete the same with intent to take, misapply or convert it to his own use * * * he shall be punished,” etc. There were some 14 counts in the indictment. Only two were submitted by the court to the jury for a finding. Both of these counts follow substantially, and as literally as can be, the form laid down by Judge White under said article of the Code in his annotation thereof, except that in the first of these counts, after all of the proper and necessary allegations in the first part, charges, “Which said sum of money he, the said N. G. Ferrell, did then and there unlawfully and fraudulently take, misapply, and convert to his own use”; in the other count it is charged, “Which said money he, the said N. G. Ferrell, did unlawfully and fraudulently secret the same with intent to take, misapply, and convert the said money to his own use.” • It will be noted that in Judge White’s form it is charged that the accused did “unlawfully and fraudulently secrete and take and misapply and convert to his own use.” The first count in this indictment leaves out the word “secrete” and uses the others contained in the statute, “did take and misapply and convert.” And the other count in this indictment presents secreting as a separate count, but misspells the word “secrete” as contained in the statute.

The appellant made a motion to quash the second count above stated because it did not follow the language of the- statute defining the offense nor use other words conveying the same meaning, and the first of said counts, together with certain others contained in the indictment, because they were surplusage and unnecessary and calculated to confuse and mislead the jury and prejudice appellant’s rights.

There can be no question as to the correctness of the first count above stated. It follows the statute as strictly and as literally as could be in its language.

We take it that appellant’s objection to the other count, while not specifically so stated, is to the word “secret” instead of that used in the statute, “secrete.” Our statute expressly provides that the “words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meanirf’g, or which include the sense of the statutory words.” O. O. P. art. 460. Again article 460 Is: “An indictment for any offense against tiie penal laws of this state shall be deemed sufficient which charges the commission of the offense in ordinary and concise language in such a manner as to enable a person of common understanding to know what is meant, and with that degree of certainty that will give the defendant notice of the particular offense with which he is charged, and enable the court, on conviction, to pronounce the proper judgment.” The next article is: “When a statute creating or defining any offense uses special or particular terms, an indictment on it may use the general term, which, in common language, embraces the special term.” Again article 453 is: “The certainty required in an indictment is such as will enable the accused to plead the judgment that may be given upon it, in bar of any prosecution for the same offense.”

Mr. Webster defines “secrete” (the verb transitive) in his main first definition as, “to deposit in a place of hiding, to hide, to conceal.” He defines the adjective “secret” as, “hidden, concealed”; and the noun as, “something studiously concealed, a thing kept from general knowledge, what is not revealed, or not to be revealed.” The Century Dictionary defines the verb transitive “secrete,” “to make or keep secret, hide, conceal, remove from observation, or the knowledge of others”; and defines the adjective “secret” as, “set or kept apart, hidden, concealed”; and defines the noun “secret” as, “something studiously hidden or concealed, a thing kept from general knowledge, what is not or should not be revealed.” So that the use of the word “secret” in this count of the indictment wherein it charges, “Which said money he, the said N. G. Ferrell, did unlawfully and fraudulently secret the same with intent to take, misapply, and convert the said money to his own use,” in our opinion is equivalent and means substantially the same thing as if the word “secrete,” the statutory word, had been used. White’s C. C. P. § 344, subd. 5, p. 254, where •some of the authorities are collated. And in our opinion there is no question but that a person of common understanding could know and did know from this allegation what is meant and with that degree of certainty that gave the appellant notice of the particular offense with which he is charged, and did and would enable the court, on conviction, to pronounce a proper judgment in the case, and would, without question, enable the appellant to plead the judgment in this cause in bar of any prosecution for the same offense where the word “secrete” instead of “secret” should be used.

The uncontradicted evidence in this case shows clearly that the tax assessor made ■out the tax roll for the year 1909; that it was submitted to the commissioners’ court, 'and, perhaps after some corrections, it was approved by the commissioners’ court and then turned over to and .received by appellant about the 16th of October, 1909, as such tax roll; that he and his deputies proceeded to collect, by virtue of that tax roll, the taxes for -said year in accordance with that roll; that he received a large amount of county tax and properly accounted to and paid to the county all that he had received; that he received a large sum of state tax; and that he. did not account for and did not pay to the state, or to any one for it, the sum of $6,465.65, and had not paid the said sum or any part thereof to the state, or to any one for the state, at the time of the trial of this case. It is true that appellant personally did not collect all of this tax himself. His properly authorized deputies did do so for him at his instance and with his knowledge, and all of said fnoney, other than what he himself took out of the collections as they were being made by him or his deputies, were deposited from time to time In three banks, and that only so much of the funds so received by him and his deputies and deposited in said banks was paid to the state by his deputies and said bank as was directed and authorized by him, and that he personally took from the collections from time to time and drew, from the banks all of said $6,465.65, and that no one else other than he has taken, misapplied, or converted the same to his own use, or secreted the same or any part thereof. It is unnecessary to detail this evidence. It is shown in a statement of facts of some 235 typewritten pages, all of which we have read and considered.

By one bill appellant complaips of the testimony of the tax assessor shown on some four or five typewritten pages, and in connection therewith the affidavit that he made to the correctness of said rolls and the approval thereof by the commissioners’ court. By this bill appellant makes many objections to the introduction of said tax roll, but they are made as objections, and not approved as facts, by the court in allowing the bill. The gist of the matter, as we understand it, is that there was some uncertainty as to when the assessor made his affidavit to the correctness of said roll, and some confusion in the copy of the certificate thereon by the commissioners’ court of whether it is the tax rolls for 1909, or that for 1908; but, taking it as a whole, it is reasonably certain that it was the tax .rolls for 1909 and not 1908, and that the tax assessor did make his affidavit substantially in compliance with the law thereto. But,- even if there should be some doubt as to this, there is no question whatever but .that appellant received this tax roll as the tax roll for 1909, and that it was the assessment of the property of said county for 1909, and that he collected the money thereunder, and that the money collected thereunder and thereon was the state’s money, which he has taken, misapplied, converted to. his own use, or secreted.

By another bill appellant complains of the question and answer of the state’s witness Will Griffith, who was one of appellant’s deputies and who collected and received as such, in connection with another deputy or deputies, the said taxes. The question was this: “State whether or not you have seen Mr. Ferrell (appellant), and, if so, on how many occasions take money from, the tax collector’s office out of the tax collections for his own personal use?” To which he answered: “He might have possibly taken as much as $5 or $10. I think I have seen him, take as much as $5 or $10.” The objection to this testimony was that this was only the opinion of the witness as to whether the money appellant took was tax money and as to whether appellant took it for his own personal use. The bill is very meager, but, as it is presented, it is our opinion that this question'and answer were proper. Certainly, if this witness saw appellant take, from time to time, the tax money which he and the other deputies were collecting and. in charge of at the time, and knew that appellant was taking it for his own use, he was competent to so testify. It is not disclosed by the bill that the witness did not know what he testified, and, if he did not, it could have been shown by further or cross-examination, and, if so., shown, then his testimony could have been excluded; but, as the -bill presents it, it shows no error. By other bills appellant complains of the testimony of the custodian of the bank books showing the account that appellant kept with said respective banks, the amount .of his deposits, and the amount of the checks against the same, and the payment to appellant or on Ms checks, and that of his duly authorized deputies, of the funds so deposited in said banks. There are various objections to the testimony of these witnesses and the books. The witnesses fully qualified to testify' as they did, and identified and proved up the correctness of the books and the entries therein so as to clearly authorize their introduction in evidence.

By another bill it appears that while appellant Mmself was being cross-examined by the district attorney, and having testified that he was thoroughly convinced what became of said tax money ($6,465.65), and that he had told a certain person that MeJilton and Lige Davis and Covey were the men that stole it, and that he had told said person that the first time he talked to them about it, and that “I still stick to it.” Thereupon the district attorney asked Mm to tell the time, the datej the amount, and when and where that money or one item that he could say that these parties or either of them ever appropriated. The appellant objected to this by his attorney because it would be mighty hard for Mm to tell the date, the hour, and the minute when it was stolen, and that said question; was not proper; that the court thereupon remarked that he thought it a very proper question; that, if “I say a man stole my money, I ought to be , able to tell how, when, and where he got it.” The appellant then answered by stating, “I think they did it simply because there was nobody else had any show at it. As to whether I had a show at it and checked on it all of the time, will say, No, sir; I did not on the state and county money.” It seems that the appellant’s objection is more to the remark of the court above stated than to the question to the appellant. Certainly the question to the appellant was not improper, and he could explain in his answer why he could not fix the time, date, moment, and when and where any of the money was stolen by the parties charged by him.

The court in allowing the bill qualified it by stating that the remark he made above complained of was made to one of the attorneys in answer to his argument ■ in such low' tone of voice that, in the opimon of the court, the jury did not hear it, and it was not intended for them to hear it. So that, if the remark of the court was improper, the bill as qualified shows no error.

Neither is there any error shown in another bill by appellant complaining that the district attorney was permitted to ask appellant on cross-examination of him if it was not. a fact that he told Jap Sprayberry that he let Maggie Neville have $900 to go into the millinery business. Certainly the state had the right to show by appellant, when he made himself a witness, what he did with this money in, giving, or letting others have, money during the time he is charged to have misapplied any of tMs state’s money.

Neither did the court err in permitting the many reports of the appellant. to the state comptroller, which were clearly and fully proven up and established, to be introduced in evidence, even though only some of them were signed by appellant personally, but all were either signed and sworn to by him or one of his legally authorized deputies. The court did not err in refusing to give appellant’s special charge as follows: “You .are charged that the term ‘current money of the United States,’ as used.in the indictment in ■this case, means legal tender, coins, or legal tender treasury notes of the United States. It is therefore essential to a legal conviction that the state should prove’ the fraudulent conversion or misapplication by the defendant of legal tender, metallic coins, or of legal tender currency of the United States” — the court having given the following charge: “You are therefore charged that, if you believe from the evidence, beyond a reasonable doubt, that the defendant, N. G. Ferrell, was tax collector of Jones county and of the state of Texas during the period of time from October 1, 1909^ to July 12, 1910, and that the defendant, N. G. Ferrell, was then and there by law and in virtue of his office a receiver of and depositary of public money belonging to tlie state) and by virtue of bis said office there bad come into bis bands and was then and there in bis possession a certain sum of money to wit, $6,465.65 current money of the United States of the value of $6,465.65, and yon further believe from the evidence beyond a reasonable doubt that the defendant did in Jones county, Texas, at any time within the period of time embraced between October 1, 1909, to July 12, 1910, unlawfully and fraudulently misapply or convert to Ms own use any part of said sum of money, then you will find the defendant guilty as charged and assess his punishment at confinement in the penitentiary for any length of time in the discretion of the jury, provided it be for not less than two nor more than ten years, as the jury may determine and so state in their verdict.”

It is beyond question the settled law of this state that money and current money of the United States means and includes gold, silver, copper or other coin, bank bills, government notes, or other circulative medium current as money. Pen. Code, art. 1419; Berry v. State, 46 Tex. Cr. R. 420, 80 S. W. 630; Butler v. State, 46 Tex. Cr. R. 287, 81 S. W. 743; Lewis v. State, 28 Tex. App. 140, 12 S. W. 736; Medders v. State, 54 Tex. Cr. R. 494, 113 S. W. 270; Sims v. State, 142 S. W. 572, and cases cited therein.

It seems that appellant’s only defense was that he did not take, appropriate, or convert any of this money, or secrete it, but that either the banks where the money had been deposited or his deputies had done so. The party named McJilton was his main deputy who helped to collect the taxes, and the other two persons named in the bill above, Lige Davis and Covey, were two of the bankers. The court, therefore, did not err in charging the jury, “and you are further charged that if you believe from the evidence that the money belonging to the state, with wMeh the defendant in this case is charged with misappropriating or converting to his own use, was in fact appropriated by another or by others than the defendant, and without the knowledge or consent of the defendant, then in no event could you convict the defendant for any such sum appropriated, if any, nor consider same as a circumstance against him in this case.” No special charge was asked by appellant on this point at all.

The conviction in this case was secured partially by circumstantial evidence, not wholly so. . In such case it is not required of the court to give a charge on circumstantial evidence, but the court in this ease did give a charge on circumstantial evidence, which has uniformly, to the extent • it goes, been approved by this court.

Appellant in this case requested no charge whatever on the subject, and his complaint to what the court did give is not that it should not have given any on the subject at all, but that it was not full enough. This presents no error.

The appellant complains of that portion of the charge of the court submitting to them for a finding, under the second count abové stated — that is, as to secreting the said money with intent to take, convert, or misapply the same to his own use — claiming there was no evidence in the record authorizing such a charge. In our opinion the evidence does amply authorize the submission of such charge. It tends to show that the appellant from time to time took from the drawer, where the tax money was placed as it was collected, different sums of money, and that he had access thereto at all times, and that he himself sometimes collected the tax money ; that he, from time to time, when he had large sums of money in each of the three banks where it was deposited when collected in his name as tax collector, instructed the banks, either personally or through his different deputies whom he required to do so, to place said funds to his individual personal credit and change the account from him as tax collector to his personal individual name, and that he from time to time drew out different sums of this money which was not sent to the state, ultimately drawing it all out, leaving a deficit of $6,465.65 due to the state, and that from time to time during this time he sent various sums of it by telegraph and otherwise to different women at different points in and out of this state, and that he run a house in Wichita Falls, and got into trouble thereabouts for there running it as a disorderly house. Upon the whole, as stated above, the evidence clearly authorized the court to sub-fnit that count of the indictment by this charge, which he did.

Besides this, the verdict in the ease was a general one, and, even if this count in the indictment had been insufficient and this question improperly submitted to the jury, yet unquestionably the other count was perfectly good, and, the proof being clearly and amply sufficient to sustain a conviction under that, no reversible error is thereby shown. For an indictment may contain as many counts charging the same offense as may be thought necessary to allege the offense under the statute, and, if any one of the counts be sufficient, the indictment is sufficient. O. C. P. art. 481. And where the verdict is general and any one of the counts is sufficient, and the evidence is sufficient to sustain that count, the court will apply the verdict to that count. Warner v. State, 147 S. W. 266, and authorities there cited. It is needless to cite other authorities. There is no other question attempted to be raised which it is necessary to consider. The evidence clearly and amply justified the verdict, and the judgment will be affirmed.

On Motion for Rehearing.

Appellant, in his motion for rehearing, contends that this court erred in holding that the court below did not err in refusing to give his special charge requested, which is ■quoted in the original opinion herein, and that this court erred in holding that the evidence in this case was sufficient to warrant the conviction because the evidence did not establish that the money embezzled by appellant was “current money of the United States.” Appellant cites and quotes from the opinion of this court in Lewis v. State, 28 Tex. App. 140, 12 S. W. 736, and Kimbrough v. State, 28 Tex. App. 367, 13 S. W. 218, and Summers v. State, 45 Tex. Cr. R. 423, 76 S. W. 762, and from other cases along the same line. All these cases are practically bottomed on Block v. State, 44 Tex. 620, wherein it was held that money, under our statutes, meant only that character of money under our law which was legal tender, and did not include bank bills, though they pass as current. If this line of •decisions is now the law, then appellant’s contention might be correct; but in several well-considered cases by this court, since the decisions in those cases were announced, this court has held expressly to the contrary and specifically overruled all such cases. In the case of Berry v. State, 46 Tex. Cr. R. 421, 422, 80 S. W. 630, Judge Henderson cites some of these eases, and particularly Lewis v. State, supra, Summers v. State, supra, and others, and said: “However, the decisions on this subject have not been uniform. In Kimbrough v. State, 28 Tex. App. 367 [13 S. W. 218], it was held that United States paper currency embraces every character of paper currency issued and authorized to be issued as a medium of exchange and circulated as money under the authority of the laws of the United States, and included national bank bills or United States gold or silver certificates. And this view appears to have been followed in Dennis v. State, 74 S. W. 559, and other cases. In Summers v. State, supra, another view was taken. There it was held that the indictment charged theft of one $5 bill current money of the United States of the value of $5 only included United States treasury notes; that is, legal tender notes and demand notes of the United States. This ease followed the line of decisions first above noted, and is not in harmony with Kimbrough’s and Dennis’ Cases and others. From the decisions on this subject, it appears that the difficulty has been-in regard to holding gold and silver certificates of the United States and national hank bills to be current money of the United States. In order to support the view that these are not to be considered money of the United States, some nice distinctions have been drawn in construing article 866, Penal Code, as to what is meant by money thereunder. Without undertaking to discuss or criticise those opinions, we would observe that we can see no good reason why an indictment which charges theft of current money of the United States, or of currency of the United States, should not include United States gold and silver certificates and national bank bills of the United States. The payment of these, as we understand the federal statutes, are safeguarded by law, and are in effect guaranteed by the United States government. Gold and silver certificates are issued directly by the government, predicated on gold and silver deposited in the treasury of the United States, and the government issues these directly. National bank bills are issued by the government predicated on bonds deposited by national banks with the government, which in turn delivers said bank bills to the particular national bank to which they were issued, and all these pass current as money at their face value in every state of the Union. According to the familiar principle ‘that things which are equal to the same thing are equal to each other,’ we hold that, where an indictment charges theft of bills ‘in the currency of the United States of America,’ or theft of ‘current money of the United States of America,’ giving the denomination and value thereof, the allegation can be proven by theft of United States legal tender treasury notes, or of United States demand notes, or of United States gold or silver certificates, or of national bank bills of the United States. We are not now discussing metallic coin. Of course gold and silver coins of the United States have always been treated as money under our statutes. All cases in conflict with this opinion are hereby overruled. We accordingly hold that in this case there was no variance between the proof introduced and the allegations in the indictment; that is, the witness Kelly testified that he was unable to say whether the $5 and $10 bills lost by him were treasury notes, national bank bills, gold or silver certificates of the United States. If they were of the denomination alleged in the indictment, and were any of the character of currency stated above, it was sufficient proof of the kind of currency alleged in the indictment.” That case was a conviction for theft from the person.

Again, in another well-considered case, wherein the opinion was rendered by Judge Henderson (Butler v. State, 46 Tex. Cr. R. 287, 81 S. W. 743), which was an embezzlement of public money belonging to a county, precisely the same character of case as this, he said: “Appellant complains of the action of the court instructing the jury, in effect, that, while appellant was- treasurer, he was only authorized to receive legal tender metallic coin or legal tender notes and current money of the United States of America for and on behalf of the county, and that he was only authorized to pay the same character of money to the county. If this clause of the charge means legal tender metallic coin or legal tender notes only, then the court’s charge under the recent authorities . was evidently too restrictive. But it occurs ■to us that the further expression' ‘current money of the United States of America’ is more- comprehensive and would cover any kind of currency of the United States of America which is guaranteed by the government and passes as money. If the latter is a correct interpretation, then it would cover any character of current money of the United States; and, as stated before, this has been recently so held. See Berry v. State, supra. And on this same subject see article 941, Penal Oode, which refers to the embezzlement of money and makes this term include, besides gold and silver, copper or other coin, bank bills, government notes, or other circulating medium current as money. If this construction were not correct, then it would almost invariably be impossible to determine what character of funds a public official may have embezzled; and it would rarely occur that the state would be able to ■show an embezzlement of legal tender notes •of the United States. Appellant requested a number of charges to the effect that defendant could only be convicted in case it should be shown he had embezzled national bank motes or United States treasury notes. These charges were refused by the court, and in accordance with our view, as expressed above, they were correctly refused. But even if it be conceded that the court’s charge, as given, restricted proof of embezzlement to coin money of the United States and United States treasury notes, we fail to see how this could injure appellant. He made no effort to satisfy his confessed defalcation to the county of some $3,000 in any kind of currency or money or in any other character •of funds. He had none, and tendered none. He admitted that he had money belonging •to the county, and it must be assumed that this was such money as he was authorized to receive; but if in liquidation of this he had offered national bank bills or gold or silver certificates or warrants, or other fund.s, and these had been refused by the county, -then he would have just cause for complaint.”

Appellant also calls csur attention to the fact that the case of Lewis v. State, supra, has many times and in many cases been referred to and approved. In most, if not all, ■of the cases where the Lewis Case was cited with approval it was on that part of the decision which held the indictment sufficient which described the stolen or embezzled money as “$5,500 in money, the same being then and there current money of the United States.” It is true the distinction, as stated 'by Judge Henderson in the Butler Case, supra, unfortunately has not always been kept ■up and noted by the court in the decisions.

In order that in future there may be no misunderstanding about the holding of this court, we here specifically state that we will adhere to the decisions in Berry v. State, supra, and Butler v. State, supra, and will hold that current money of the United States, or any such like general description, whether in theft or any character of embezzlement case, means and includes gold and silver, copper or other coin, bank bills, government notes, or other circulating medium current as money, and also includes gold and silver certificates and national bank bills, and will adhere to the decision in the Berry Case, supra, which overrules all cases in conflict therewith. See, also, Dennis v. State, 74 S. W. 559; Anglin v. State, 52 Tex. Cr. R. 476, 107 S. W. 835; Kirk v. State, 35 Tex. Cr. R. 230, 32 S. W. 1045. What is said and quoted above in the Butler Case is peculiarly and specially applicable to the facts and law of this case.

The motion is overruled.  