
    DICKEY v. STATE.
    (Court of Criminal Appeals of Texas.
    Feb. 21, 1912.)
    1. Embezzlement (§ 21) — Elements—Conversion by Public Officer.
    Under White’s Ann. Pen. Code 1911, art. 103, making it a crime for any city officer to misapply any funds of the city coming into his custody by virtue of his office, a city secretary cannot be convicted of misapplying funds of the city, where the charter does not require him to handle any such funds, since they do not come into his custody by virtue of his office.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 24 — 29; Dec. Dig. § 21.]
    2. Embezzlement (§ 21) — Misapplication by Public Officer.
    A city secretary cannot be convicted of misapplying a warrant belonging to the city, where he actually deposited the warrant in a bank to the credit of the city, although he deposited it to the credit of a wrong fund for the purpose of covering up a shortage in that fund.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 24r-29; Dec. Dig. § 21.]
    3. Embezzlement (§ 34) — Indictment — Sufficiency.
    An indictment against a city officer for embezzlement of a warrant belonging to the city is defective, where the warrant set out in the indictment was not under seal and did not show upon its face that its issuance was directed by the city council, as required by the charter.
    [Ed. Note. — For other cases, see Embezzlement, Cent. Dig. §§ 53, 54; Dec. Dig. § 34.]
    4. Cbiminal Law (§§ 419, 420) — Evidence —Hearsay.
    In a prosecution for embezzlement, an auditor’s report, showing the amounts embezzled, is hearsay and inadmissible, where the information contained in the report was obtained in part from different books, in part from oral statements of different persons, and in part from other sources.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 973-983; Dec. Dig. §§ 419, 420.]
    5. Criminal Law (§ 369*) — Evidence—Other Offenses.
    Where a city secretary was indicted for misapplying a warrant belonging" to the city, and it appeared that the warrant was deposited by him to the credit of the wrong fund of the city for the purpose of covering up a shortage in that fund, it was error to admit evidence of prior misappropriations from the fund in which the shortage appeared.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. § 369.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    R. B. Dickey was convicted of misapplying property of a city, and he appeals.
    Reversed, and prosecution dismissed.
    Scott, Sanford & Ross, J. N. Gallagher, and Z. I. Harlan, for appellant. C. E. Lane, Asst. Atty. Gen., for the State.
    
      
      For otter cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r indexes
    
    
      
      For other oases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep’r Indexes
    
   DAVIDSON, P. J.

This record is voluminous both in volume and questions suggested for revision. The indictment contained five counts. Appellant was convicted under the third, which is as follows: “And the grand jurors aforesaid, upon their oath aforesaid, • do further present in and to the court aforesaid that in said state and county R. B. Dickey was then and there an officer, to wit, secretary of an incorporated institution, to wit, the city of Waco, which was then and there an incorporated city in said county and state, and as such officer and by virtue of said office there had come into his hands and was in his charge, custody, and possession, a written instrument of the tenor following: ‘No. 43. Waco, Texas, Mar. 29, 1909. L. B. Black, Treas. ©■■■ A. -gtegiSr Treasurer Oity of Waco: Pay to the order of R. B. Diokey City Secy $314.25 three hundred fourteen & 25/ioo dollars from First Series Sanitary Sewer Bonds Slcg Fund. Account of Pay Roll and Estimate Sam, Sewer Extensions. The Oity of Waco Jas. B. Baker Mayor. Attest: R. B. Diokey City Secretary.’ Indorsed on back: ‘R. B. Dickey,, Oity Secy.’ —which said written instrument was a valid, legal, and valuable obligation then and there of the value of $314.25, and which said written instrument was then and there the property of said incorporated institution, and the said R. B. Dickey did then and there unlawfully and fraudulently take, misapply, and convert the same to his own use.”

A discussion of this appeal will be confined to this count. The city charter created, among other things, the office of city secretary, and defined his duties to be substantially: (1) To attend the meetings of the city council and keep accurate minutes of the proceedings thereof in a book to be provided for that purpose; (2) to engross and enroll all laws, resolutions, and ordinances of the city council; (3) to keep its corporate seal; (4) to take charge of, preserve, and keep in order all the books, recorded papers, documents, and files of said council; (5) to countersign all commissions issued to the city officers and licenses issues by the mayor, and to keep record thereof; (6) to make out all notices required under any regulation or ordinance of the city; (7) to draw all warrants on the treasurer and countersign the same and keep an accurate account thereof in a book provided for the purpose; (8) he was also made the general accountant of the corporation and required to keep in books regular accounts of the receipts and disbursements for the city, and, separately, under proper heads, each cause of receipts and disbursements, and also an account with each person, including officers, who had money transactions with the city, crediting the amounts allowed by proper authority, and specifying the particular transaction to which interest applied; (9) to keep a register of bonds and bills issued by the city, all evidences of debts due and payable to it, noting particulars thereof, and all facts connected therewith, as they occurred; (10) to keep all contracts made by the city council; (11) to do and perform all such other duties as might be required of him by law, ordinance, resolution, or order of the city council; (12) and he was also made ex officio clerk of the police court, and, as such, was given power to administer oaths, take affidavits, issue warrants, subpoenas, and other process. It might be further stated that there were no orders of the mayor or city council imposing other needful or reasonable duties upon the city secretary that pertained to his office. The only resolution or action of the city council relating to or defining the duties of this officer was one adopting the report of a special committee, which declared that the office was one of record only and prohibiting the secretary, and this by his own request, from collecting any funds belonging to the city, and imposing that duty upon the collector. The charter of the city of Waco is an act of the Legislature, and, among other things, it is provided as follows in said charter: “This act shall have force and effect of a public act, and the courts shall take notice thereof in all proceedings without further proof.” There was also created a city treasurer, and bond was required 'of this officer, and it was made his duty to receive and keep all moneys belonging to the city. Provision was also made for the payment by him from the same upon the order of the mayor, attested by the secretary under the seal of the corporation, of any of its debts, and he is prohibited from paying any order unless said order shall show on its face that the city council has directed its issuance, and further shows for what purpose it was issued.

1. It is contended: First, that the order alleged in the indictment is invalid, in that it is not charged in the indictment to have been under seal as required by the charter; second, that it having been brought under article 103 of White’s Penal Code, the evidence must show that the money or property was public funds or property owned by the city, and such funds or property must have come into the possession of the officer by virtue of his office, and his duties to receive the same must be defined by law and cannot be created by custom or usage; third, that a city official is not guilty of embezzlement or fraudulent conversion of a city warrant which has come into his possession where he takes the identical warrant to the c-ity treasurer and deposits same to the city’s credit, even though the deposit is made to cover up a pre-existing shortage on his part with the funds with which he makes such deposit; fourth, a verdict of guilty in a criminal case which, on the facts, is contrary to the court’s charge, should be set aside. Without discussing same, it may be stated that under the charter the city secretary is not charged with the duty of receiving, paying out, or handling the said funds, and, if he did so, that it was not within the scope of his official duty, and he would not and could not become responsible under a charge of embezzlement, misapplication, or conversion of the property of the city simply because he may have collected and handled funds of the city or paid off its debts with the funds. It is clearly to be observed under the terms of article 103, supra, that the officers therein mentioned can only be charged with the duty of handling property of the city which comes into his possession by virtue of his office, and where it is sought to prosecute for the fraudulent conversion of such funds to his own use, the indictment must show that the funds came into his possession by virtue of his office. If the property does not so come into his possession, or if he is not authorized by the terms of his office to receive the property, then he cannot be convicted under this statute. Hartnett v. State, 56 Tex. Cr. R. 281, 119 S. W. 855, 23 L. R. A. (N. S.) 761, 133 Am. St. Rep. 971; Warswick v. State, 36 Tex. Cr. R. 63, 35 S. W. 386; State v. Bolin, 110 Mo. 209, 19 S. W. 650; Moore v. State, 53 Neb. 831, 74 N. W. 319; Henderson County v. Richardson, 15 Tex. Civ. App. 699, 40 S. W. 38; Rice v. Vasmer, 51 Tex. Cir. App. 167, 110 S. W. 1005; United States v. Smith, 124 U. S. 525, 8 Sup. Ct. 595, 31 L. Ed. 534; State v. Newton, 26 Ohio St. 265; United States v. Hutchinson, 4 Clark (Pa.) 211; Sherrick v. State, 167 Ind. 345, 79 N. E. 193; County of San Luis Obispo v. Farnum, 108 Cal. 562, 41 Pac. 445; Com. v. Alexander, 129 Ky. 429, 112 S. W. 586; State v. Meyers, 56 Ohio St. 340, 47 N. E. 138; R. v. Orman, 36 Eng. L. & Eq. 611. It would follow, therefore, if appellant, under his duty as city secretary, was not charged with receiving the warrant, in question, or was charged with handling it by virtue of his official position, that, if he converted it, it could not be embezzlement. It is unnecessary to go into a statement of the facts further than above stated, to wit, that appellant was not charged with such duties, but that the city treasurer was. The duty of handling the funds and making payments devolved by the terms of the charter upon the treasurer, and not upon the city secretary.

2. It is also contended under the law and facts that appellant co*ld not be guilty because he was not charged • with receiving or paying out the funds of said city, or in any manner authorized to handle, receive, or have same in his official custody. Erom what has been said above it is clear that this proposition of law is with the appellant. To meet this, it was the theory of the state that, while appellant may have taken and did take the warrant in question to the bank and deposit it there to the city’s credit, yet this was done to cover up pre-existing shortage on his part of some other fund, and that the deposit of the warrant was for the purpose of covering up that defalcation, and by this means he converted this warrant to his own use. In other words, that he had used funds belonging to some other particular fund than that to which this warrant was credited, and that this warrant was credited to the other fund in order to cover up that defalcation, and that therefore the state would be justified in asking a conviction upon that theory. This is not correct, nor is it the law. He was not charged with illegally crediting this warrant to the wrong fund or with having used funds properly belonging to the other fund, but was charged only with misapplying and converting this particular warrant. But even had he done this, still the state could not claim a conviction of embezzlement of this warrant, even if it was legally in his possession by virtue of his office; it could not be embezzled by him by placing it to the credit of another city fund, even to cover up a defalcation in the other fund. In order “to constitute a conversion so as to make it a case of embezzlement, the owner must be deprived of his property or money by an adverse using or holding.” 10 Am. & Eng. Ency. of Law, p. 994. Again it is said: “As in the ease of other servants or agents, a conversion is necessary to constitute the offense of embezzlement by a public officer or employé, that is, it is essential that the owner should be deprived of the property embezzled by an adverse holding or use.” This quotation will be found on page 496 of 15 Cyc. See, also, cases cited in note 19 on same page. This question was before the Supreme Court in the case of Com. v. Este, 140 Mass. 279, 2 N. E. 769; the opinion having been delivered by Justice Holmes, who is now a member of the Supreme Court of the United States. The quotation is as follows: “The fact that the payment was a means of embezzling other money in the future, or covered up an embezzlement of other money in the past, would not make it an embezzlement of the money paid. Neither would the fact that he represented it to the town (not to the payee) as the payment of other town money; that is, as a payment from Us balance on band and not from tbe notes. Tbe embezzlement retains so mueb of tbe character of larceny that it is essential to tbe commission of tbe crime that tbe owner should be deprived of tbe property embezzled by an adverse bolding or use.” This contention of tbe state is predicated only upon tbe theory or the fact that tbe warrant was received by tbe city by having been placed to tbe city’s credit on account at the bank on tbe wrong fund. Upon this basis or theory, conceding its correctness, tbe appellant could not be convicted, and the state conceded away its case, and all rulings of tbe court either in tbe charges or in tbe admission of testimony during tbe trial of this case, predicated upon this phase, are necessarily erroneous. We make this general statement here because we deem it unnecessary to take up those various questions. Many of them are presented for revision by bills of exception and objections to tbe charge. In order to secure a conviction in this case, tbe city must prove that appellant was charged with the official duty of receiving tbe warrant, and that it was this particular warrant that was misapplied or converted. As before stated, tbe conviction could not be predicated upon tbe fact, if it was a fact, that appellant had credited it to tbe wrong fund to cover up some prior defalcation. Tbe accused can only be convicted of embezzlement of the fund charged to have been embezzled as set forth in the indictment. Tbe statute does not authorize, nor can it be construed by intendment to cover, any other misapplication of funds or warrants except that set forth in tbe indictment. Tbe misappropriation or misapplication or embezzlement must be proved as it is alleged. In this connection it may be well enough to state that tbe facts show that this warrant and quite a lot of others were carried by appellant to the bank on tbe evening of the 29th of March, 1909, evidently after banking hours. The evidence shows that these matters were carried forward in the bank books of date March 30th, or the day following the deposit at the bank, and among other items in the bank books was the particular warrant set forth in the indictment. The warrant was credited to the account of the city.

3. In regard to the contention of appellant that the evidence is not sufficient to justify this conviction, we think perhaps we have said enough in the previous portion of the opinion to indicate that the state failed in its proof. This question has been fully discussed in Warswick v. State and in Hartnett v. State, supra, and the propositions there are so clearly laid down that we deem it unnecessary to say more than this: They apply with equal cogency to the facts and law of this case. The evidence is insufficient: First, because the warrant was void in that it does not show on its face that it was ordered by the city council; second, it was not appellant’s duty to receive the said funds and pay them out, and therefore it was not within the scope of his duty to receive this warrant; third, the city received credit on the bank books for the full face value of the warrant; fourth, appellant could not embezzle the identical funds set out in the warrant or the warrant itself when the city had gotten full credit for its face value on the bank books, although it was credited to the wrong fund.

4. One other question we will mention. The indictment is not sufficient in that it does not allege in any way that the instrument was under seal, as required by the charter, nor does it set out on the face of the warrant that it was drawn by order of the city council. In order to constitute a valid indictment for this offense under the terms of the charter, these matters should have been alleged, and the instrument itself should have contained these necessary requisites. The city charter contains this provision (article 80): “The city treasurer shall receive and securely keep all moneys belonging to the city, and shall make all payments for the same upon the order of the mayor, attested by the secretary, under the seal of the corporation, provided that no order shall be paid unless the said order shall show upon its face that the city council has directed its issuance, and show for what purpose it was issued.” Article 100 of said charter thus provides: “It shall be the duty of the city treasurer to receive and securely keep all moneys belonging to the city, and shall make all payments for the same upon the order of the mayor, attested by the city secretary, under the seal of the city, provided that no order shall be paid unless the said order shall show upon its face that the city council has directed its issuance, and show for what it was issued.” An inspection of the instrument set out in the indictment will-show that it did not contain that part of the proviso, to wit, the order shall show upon its face that the city council has directed its issuance. Nor does the indictment anywhere show that the instrument was under seal.

5. There are some 18 or 20 bills of exception found in the record. They have been prepared with great care and caution, and show marked ability in their preparation, so that the questions intended to be presented to this court are carefully and critically reserved. After what has been said, it is not deemed necessary to go into a discussion of them. Many of these bills show fatal error. In a general way it may be said that they were reserved largely to the introduction of a vast amount of evidence from different witnesses in regard to many transactions that ought not to have been in this record. There was an auditor’s report covering thousands of dollars in all sizes, or items from a few cents up to several thousand dollars, which report covers 10 years of time, practically all of it anterior to the transaction set forth in the indictment. Some of these items were gathered from one book, some from another, some from one source, and some from other sources, and in fact from all sorts of imaginable sources. Much of it was hearsay, and from conversations with people when it was found the books were silent about the transactions, all of which were introduced against appellant and over his objection. We are led to believe that the state sought this testimony and the court admitted it upon the theory that, if appellant had diverted other funds or money from different funds belonging to the city, that would form a sufficient predicate to justify the conviction as a misapplication of this particular fund by crediting this particular warrant to the wrong fund instead of the fund to which it really belonged. We have said enough heretofore to indicate that this was error. This testimony, therefore, was inadmissible. Under no aspect of this record, or from any theory advanced or contended for by the state, could these private conversations and matters of that sort, purely hearsay in their nature and based alone upon the memory of people, be used against appellant. Appellant either did or did not misapply or convert this warrant, even if he was charged under the law with receiving it. He was not charged in this indictment with other misappropriations, but was only charged with' misappropriation of this particular item. Had appellant appropriated this particular warrant to his own use and thus embezzled the city fund, and upon a trial claimed honesty of purpose and intent in the matter, then perhaps his manner and means of using other portions of the city’s funds might be brought into the case for the purpose of showing intent and system. But the case is not presented in this attitude, even if he could be held to have been officially responsible for receiving the warrant.

It is not deemed necessary to notice the errors in the other bills of exception under the disposition made of the case.

For the reasons indicated, the judgment is reversed, and the cause is dismissed.

PRENDERGAST, J„ absent.  