Supplementing the foregoing opinion of the commission, the following observations are made concerning venue by the Court of Criminal Appeals:
The warrant issued by the state for $2,626.95 was not a negotiable instrument in the sense that it would have entitled an innocent purchaser of the warrant to acquire from the state the amount stated on the face of the warrant, but such purchaser would acquire no more than a right to collect from the state the amount that it owed the appellant, namely, $1,626.95. No authority for the issuance of the warrant for the amount stated in its face or to pay the full amount of such warrant existed. No purchaser of the warrant, whether in good faith or not, could legally demand from the state the payment of more than the amount which was owing. See Ency. of Law Proc., vol. 11, p. 531; vol. 7, p. 818; vol. 36, p. 895; Corpus Juris, vol. 59, p. 269, sec. 406; Tex. Jur., vol. 11, p. 665, sec. 118.
Speaking of the negotiability of a warrant, in the section of Corpus Juris mentioned above it is said: "It is not, however, a negotiable instrument in the sense of the law merchant so as to shut out as against a bona fide purchaser inquiries as to its validity or preclude defenses or set-offs which could be asserted as against the original payee. * * * As against the state the assignee acquires no greater rights than the party to whom the warrant was originally issued."
From the section of Texas Jurisprudence mentioned, the following is quoted: "While warrants are in the ordinary form of commercial paper, they do not possess the qualities of such paper; they are not negotiable instruments."
See Scott County v. Advance-Rumley Tresher Company, 36 *Page 194 A. L. R., 937, in the syllabus of which it is said: "One taking a county warrant takes it subject to defenses that might be interposed were it held by the orginal payee."
Many authorities are cited, including 2 Rawle C. L., 629; 1 Rawle C. L. Supp., 596; 4 Rawle C. L. Supp., 121.
At page 951 of the Amer. Law Rep., vol. 36, supra, are collated a number of decisions of this and other states affirming the principle last stated.
Predicated upon the foregoing remarks and authorities, the opinion is entertained that, if Speer, with knowledge of the fact that there was a mistake in the issuance of the warrant to the extent of $1,000, concealed the vice in the warrant and sold it to the bank with fraudulent intent and acquired the funds of the bank, he apparently might have been prosecuted for swindling at the place where the swindling occurred. In the transaction as it appears here, however, it seems that, as Speer, knowing the vice in the warrant, withheld such knowledge from the bank, and used the managers of the bank and their correspondents as innocent agents to fraudulently obtain from the treasurer of the state a thousand dollars, his offense is theft, with the venue at Austin, where the money was fraudulently acquired for his benefit.
ON MOTION FOR REHEARING.