BAKER, Judge.
Appellant was indicted, tried and convicted in El Paso County on December 12, 1922, of misapplying and converting to his own use $610.00 in money belonging to said county, and his punishment assessed at two years in the penitentiary.
Appellant filed a motion" to quash the indictment, among other things charging that ,the indictment was insufficient because it failed to allege whether the defendant received jury fees or stenographer fees and not being sufficient to put the defendant upon notice to defend the charges made in the indictment, and complains of the action of the court in overruling
same; and after the testimony of the state was in and the charges had narrowed down to money received by the defendant as jury fees and stenographer fees between the 2nd and 8th days of November, 1920, then the appellant moved the court to compel the state to elect upon which set of fees the state would rely for a conviction — that is, whether money obtained as jury fees or money obtained as stenographer fees —which the court declined to do, and charged the jury, that in their consideration of the guilt or innocence of the defendant they would consider the evidence bearing on the money arising from the two sets of fees above stated and between the dates above stated.
The indictment follows the approved form laid down in Branch’s Annotated Penal Code, Art. 105, Sections 739-740. We are of the opinion that the indictment in this case is sufficient, and by charging the defendant .with receiving money belonging to the county that came into his hands as such officer, clerk of the District Court, there was no error in admitting the testimony as to money arising from any source, whether from jury fees or from stenographer fees, which would show or tend to show the misapplication of same. Miller v. State, 242 S. W. 1040.
In the case supra, by Presiding Judge Morrow, where the question arose on a plea of former jeopardy, wherein the defendant had been convicted in two prior cases of embezzlement and was then pleading former jeopardy, he used the following language:
“In our opinion, the fact that during appellant’s agency he received a number of sums of money on different occasions by virtue of his agency does not alone preclude the state from founding a prosecution upon more than one transaction. As we interpret the authorities to which appellant refers, they do not support the theory relied upon by him as stated above. What we regard as an accurate statement of the principle governing cases of embezzlement was made by Judge Clark in the case of Leonard v. State, 7 Tex. App. 444 * * * quoting from the Leonard case, which in part is as follows: ‘There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading.’ ”
Judge Morrow further states in said authority:
“It is true that an agent might, at various times, receive sums of money for his principal, and retain it until a large sum had accumulated, and on the prosecution the facts show that he was guilty of but one offense, on the theory that the intent to convert was not formed until the time he appropriated the accumulated sum. This, however, does not necessarily follow, but depends upon the evidence in the particular cases. The time of forming the criminal intent to fraudulently convert the particular sum of money, together with the evidence showing its diversion from its intended purpose or the exercise over it of the right of ownership, inconsistent with that of the principal, or contrary to the nature of the trust upon which the funds are held, are proper subjects of inquiry, and important factors in leading to the solution of the question as to whether there had been committed one offense or more.”
We gather from this opinion that each case depends upon the particular facts as developed upon the trial as to whether or not the state would be forced to rely upon the total sum of money received or the different amounts and items aggregating said sum, though said items came from different sources, and the guilt of the defendant would depend upon the time that he formed the intention to embezzle such funds. As we view the record in this case, as to when the defendant formed the design to misappropriate the funds, if - he did so, is a fact peculiarly within his own knowledge, and the only way that the state could make proof of such intent would be by circumstances.
R. S. Art. 1696 requires the district clerk, in addition to reports required under the Code of Criminal Procedure, to make on the last day of each term of the District Court a complete and itemized account in writing setting forth all money received by him for jury fees, etc., and present same to the judge of said court for approval, and, when approved, to record same in the minutes of said court. Art. 1697 R. S. requires the district clerk to pay over to the county treasurer all jury fees and fines received by him to the use of the county. Art. 1927 R. S. requires the clerks of all courts having official shorthand reporters to tax three dollars stenographer fees as costs in civil cases, except delinquent tax suits, which when collected shall be paid by said clerk into the general fund of the county. Art. 1050 C. C. P. requires :
“Money collected by an officer upon- * * * jury fees, collected under any of the provisions of this code, shall be
forthwith paid over by the officers collecting the same to the county treasurer of the proper county,” etc.
Art. 1045 C. C. P. requires all officers charged by law with collecting money for the use of the state to make a report in writing under oath as set out in Art. 1046 C. C. P., and Art. 1047 C. C. P. is as follows:
“A report such as required by the two preceding articles shall also be made of all money collected for the county, which report shall be made to each regular term of the commissioners’ court for each county.”
The testimony in this case discloses that the defendant was clerk of the District Court of El Paso County, and C. Aranda, deputy country clerk and clerk of the commissioners’ court, testified that the last report that the defendant made to the commissioners’ court “was his report of fees collected for the year ending November 30, 1919.” The record shows that the defendant went out of office in July, 1921, and he was tried and convicted in this case on December 12, 1922. The record further discloses by the witness Webb, county treasurer, that the defendant had not paid any money into his office since January 5, 1920, except three dollars. The undisputed testimony, as we understand the record, shows that between November 2 and November 8, 1920, the time limited in the court’s charge for the jury to consider, the defendant received in his office five jury fees, aggregating $25.00, and seven stenographer fees, aggregating $21.00, and no showing where any of these fees above mentioned were paid in to the treasurer, unless the three dollars above mentioned in the treasurer’s testimony was a part of same.
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BAKER, Judge.
Appellant was indicted, tried and convicted in El Paso County on December 12, 1922, of misapplying and converting to his own use $610.00 in money belonging to said county, and his punishment assessed at two years in the penitentiary.
Appellant filed a motion" to quash the indictment, among other things charging that ,the indictment was insufficient because it failed to allege whether the defendant received jury fees or stenographer fees and not being sufficient to put the defendant upon notice to defend the charges made in the indictment, and complains of the action of the court in overruling
same; and after the testimony of the state was in and the charges had narrowed down to money received by the defendant as jury fees and stenographer fees between the 2nd and 8th days of November, 1920, then the appellant moved the court to compel the state to elect upon which set of fees the state would rely for a conviction — that is, whether money obtained as jury fees or money obtained as stenographer fees —which the court declined to do, and charged the jury, that in their consideration of the guilt or innocence of the defendant they would consider the evidence bearing on the money arising from the two sets of fees above stated and between the dates above stated.
The indictment follows the approved form laid down in Branch’s Annotated Penal Code, Art. 105, Sections 739-740. We are of the opinion that the indictment in this case is sufficient, and by charging the defendant .with receiving money belonging to the county that came into his hands as such officer, clerk of the District Court, there was no error in admitting the testimony as to money arising from any source, whether from jury fees or from stenographer fees, which would show or tend to show the misapplication of same. Miller v. State, 242 S. W. 1040.
In the case supra, by Presiding Judge Morrow, where the question arose on a plea of former jeopardy, wherein the defendant had been convicted in two prior cases of embezzlement and was then pleading former jeopardy, he used the following language:
“In our opinion, the fact that during appellant’s agency he received a number of sums of money on different occasions by virtue of his agency does not alone preclude the state from founding a prosecution upon more than one transaction. As we interpret the authorities to which appellant refers, they do not support the theory relied upon by him as stated above. What we regard as an accurate statement of the principle governing cases of embezzlement was made by Judge Clark in the case of Leonard v. State, 7 Tex. App. 444 * * * quoting from the Leonard case, which in part is as follows: ‘There is no settled mode by which this appropriation must take place, and it may occur in any one of the numberless methods which may suggest itself to the particular individual. The mode of embezzlement is simply matter of evidence, and not pleading.’ ”
Judge Morrow further states in said authority:
“It is true that an agent might, at various times, receive sums of money for his principal, and retain it until a large sum had accumulated, and on the prosecution the facts show that he was guilty of but one offense, on the theory that the intent to convert was not formed until the time he appropriated the accumulated sum. This, however, does not necessarily follow, but depends upon the evidence in the particular cases. The time of forming the criminal intent to fraudulently convert the particular sum of money, together with the evidence showing its diversion from its intended purpose or the exercise over it of the right of ownership, inconsistent with that of the principal, or contrary to the nature of the trust upon which the funds are held, are proper subjects of inquiry, and important factors in leading to the solution of the question as to whether there had been committed one offense or more.”
We gather from this opinion that each case depends upon the particular facts as developed upon the trial as to whether or not the state would be forced to rely upon the total sum of money received or the different amounts and items aggregating said sum, though said items came from different sources, and the guilt of the defendant would depend upon the time that he formed the intention to embezzle such funds. As we view the record in this case, as to when the defendant formed the design to misappropriate the funds, if - he did so, is a fact peculiarly within his own knowledge, and the only way that the state could make proof of such intent would be by circumstances.
R. S. Art. 1696 requires the district clerk, in addition to reports required under the Code of Criminal Procedure, to make on the last day of each term of the District Court a complete and itemized account in writing setting forth all money received by him for jury fees, etc., and present same to the judge of said court for approval, and, when approved, to record same in the minutes of said court. Art. 1697 R. S. requires the district clerk to pay over to the county treasurer all jury fees and fines received by him to the use of the county. Art. 1927 R. S. requires the clerks of all courts having official shorthand reporters to tax three dollars stenographer fees as costs in civil cases, except delinquent tax suits, which when collected shall be paid by said clerk into the general fund of the county. Art. 1050 C. C. P. requires :
“Money collected by an officer upon- * * * jury fees, collected under any of the provisions of this code, shall be
forthwith paid over by the officers collecting the same to the county treasurer of the proper county,” etc.
Art. 1045 C. C. P. requires all officers charged by law with collecting money for the use of the state to make a report in writing under oath as set out in Art. 1046 C. C. P., and Art. 1047 C. C. P. is as follows:
“A report such as required by the two preceding articles shall also be made of all money collected for the county, which report shall be made to each regular term of the commissioners’ court for each county.”
The testimony in this case discloses that the defendant was clerk of the District Court of El Paso County, and C. Aranda, deputy country clerk and clerk of the commissioners’ court, testified that the last report that the defendant made to the commissioners’ court “was his report of fees collected for the year ending November 30, 1919.” The record shows that the defendant went out of office in July, 1921, and he was tried and convicted in this case on December 12, 1922. The record further discloses by the witness Webb, county treasurer, that the defendant had not paid any money into his office since January 5, 1920, except three dollars. The undisputed testimony, as we understand the record, shows that between November 2 and November 8, 1920, the time limited in the court’s charge for the jury to consider, the defendant received in his office five jury fees, aggregating $25.00, and seven stenographer fees, aggregating $21.00, and no showing where any of these fees above mentioned were paid in to the treasurer, unless the three dollars above mentioned in the treasurer’s testimony was a part of same. Now, construing the statutes and the decisions above cited, together with the testimony in this case, the jury fees and the stenographer fees have never been turned in by the defendant at all up to date of trial, unless the said three dollars constituted some of said fees, and the undisputed testimony showed that the commissioners’ court met in its regular session November 8, 1920, the time that the law required the appellant to make his report to the said court, and the statutes above mentioned required him to forthwith turn in said fees to the treasurer, but the undisputed testimony in the record shows that he did not do so, and wholly failed to observe the requirements of the statutes with reference to handling and turning over these fees; in fact, the evidence of the deputy county clerk shows that the defendant had not made a report since November 30, 1919, up to the date of the
trial, December 12, 1922. The defendant failed to produce or offer any evidence as an excuse for failing to turn in the fees or to make the reports, and under the law those matters, if any excuse he had to offer, were peculiarly within his knowledge, and it devolved upon him to show such excuse for failure to comply with the requirements of the law. The appellant’s attorney’s seem to recognize the proposition of law above stated in citing Evans v. State, 40 Tex. C. R. 54, which states:
“Where exculpatory evidence of an important character is peculiarly within the knowledge of the defendant it is his duty to produce it.”
We think this authority is peculiarly applicable to the instant case, and when the state had proved the reception of the fees above mentioned by the defendant and his failure to make a report and turn same in as required by the statutes it has fully made out its case, and then it devolved upon the defendant, if any excuse he had for not complying with the law, to produce testimony along this line, which he failed to do.
There is also an objection raised to the admission of the testimony by the state showing various and different amounts and items of money - received by the defendant in his official capacity from January 5, 1920,' and also complaint as to the court’s written charge instructing the jury that same could only be considered as showing intent or system of the defendant. It is contended in this connection that those items were barred by the statutes of limitation, as a reason why they should not be admitted. In the case of Miller v. State, supra, Judge Lattimore on motion for rehearing overruled this contention and in effect sustains the contention of ¿he state in the instant case. We fail to observe any harmful error in the action of the court in this particular, because practically there was no controverted issue raised in the case by the defendant as to that class of testimony or over those items, and no controversy raised over the items and the amount relied on for a conviction between November 2 and 8, 1920.
After a very careful consideration of the entire record and the authorities cited by the attorneys for the appellant, and defendant having received the least penalty, we are constrained to believe that there is no reversible error shown in the trial court, and the judgment should be affirmed, and it is accordingly so ordered.
Affirmed.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.