When the opinion was handed down I entered a dissent, stating generally that the case ought to be reversed both on the law and the facts. Appellant is charged with embezzlement in that he was the agent and employee of J.C. Cole and J.W. Robinson, trustees in and for common school district No. 10 in Newton County, and trustees for Oak Grove colored school number 2 in said common school district number 10 in Newton County, and he did then and there fraudulently embezzle, misapply and convert to his own use, without the consent of said Cole and Robinson, trustees aforesaid, and without the consent of anyone else legally authorized to give such consent, and without the consent of anyone authorized to give the consent of Oak Grove colored school number 2 in common school district number 10 in Newton County, certain money, etc., which money was under the supervision and control of Cole and Robinson, trustees aforesaid.
This indictment was framed under article 1416 of the Revised Penal Code, defining the offense of embezzlement. Under that definition the relation of principal and agent or employee must exist, and always carries with it the idea of a fiduciary relation or status, and the offense can not be without it. If this relation does not exist, or the accused is not a principal or accomplice, aiding the embezzler, then he is not subject to prosecution under that article. Under the facts appellant could not be and was not an employee or agent of Cole and Robinson, and under the law could not be. He must be agent or employee, and must receive property in such capacity to constitute him an agent. They were all three trustees of the same school community, and held that position in a trust relation, officially. They could not delegate their authority, nor appoint agents to act in their stead or place. The statute does not authorize these officers to delegate their authority or appoint agents. The trustees by virtue of their office had control, in a certain sense, of the school property, situate in the school district, but could not even sell it without an order of the Commissioners Court. It devolved upon them as trustees to have the property repaired or schoolhouses built, and to make contracts to that end. Articles 2772, 2844 and following articles. The statute does not authorize school trustees to hold, possess or control school money.
The evidence incontrovertibly shows that they did not have in possession any school money, under the law they could not have such possession. On the contrary, it shows they did not, and articles 2767 and 2777 expressly provide that school money shall be placed in the hands of the depository, and the facts show that the Newton County Bank was the depository, conforming to the law in becoming such, and that all money belonging to the schools of that county was kept in that depository. As school trustees are not charged with receiving money in their official capacity, they, therefore, could not be the owners of school *Page 528 money in any sense, general or special. In order to charge an officer with embezzling or misapplying public funds, he must be charged as such and his duties as such officer must authorize or require him to receive money in his official capacity. Hartnett v. State, 56 Tex.Crim. Rep.; Warswick v. State,36 Tex. Crim. 63, and Dickey v. State, 65 Tex.Crim. Rep., 144 S.W. Rep., 271. School money is deposited in the county depository, to be paid out only as the law authorizes. In that way the depository may be said to be the special owner of funds of this character, because the law requires it to be so kept. If school trustees can not receive the money or be charged with and prosecuted as embezzlers, it would be difficult to conceive how they could create an agency in any way with reference to receiving such money. The question of ownership in embezzlement is the same as in theft, for embezzlement is but a fraudulent conversion of money or property by the agent from the principal. See Leach v. State, 46 Tex.Crim. Rep.. Appellant was one of the trustees of the school district mentioned in the indictment, Cole and Robinson being the other two. These trustees all occupied the same relation to the law in all matters of duty or obligation. If one was a principal, they were all principals. If one was agent, they are all agents. They are authorized to approve accounts or vouchers to be subsequently approved by the county superintendent of the county schools. This and this only authorizes the depository to pay such voucher. This is the full extent of their connection with school money. Therefore, neither nor all of them could be owners, special or general, of the funds. They were not only not in control of the funds or had the funds in possession as demonstrated by the facts, but under the law they could not be, nor have control of such money. If this matter is viewed from the standpoint of partnership, appellant could not embezzle from the partners nor be charged with embezzlement of partnership funds. This matter has been settled by quite a number of cases in Texas. See Dancy v. State,41 Tex. Crim. 293, and Manuel v. State, 44 Tex.Crim. Rep.. But the general question is not debatable under our authorities. To constitute the relation of principal and agent, there must be authority or capacity to create such relation. The agent must be in the employment of the principal in some fiduciary relation. Unless the law specially authorizes an officer to receive money he can not do so, and, of course, he would not be authorized to appoint a deputy or agent to receive money. The statute in this instance does not authorize the appointment of agents or deputies. All three of the trustees stand in exactly the same relation to their duties as each so stands. A principal can not constitute himself an agent. All three can not create legal relations not authorized by law.
Again, the evidence shows beyond controversy, and from the State's witnesses exclusively, that a schoolhouse under control of Cole, Robinson and appellant needed repairs. It seems that appellant in a general way looked after and cared for the school property to be repaired. It was agreed that appellant should see that such repairs were made, *Page 529 make out a voucher for incurred expenses, and sign the names of Cole and Robinson thereto approving same. This was done, and the names of Cole and Robinson were signed to the voucher, or what they termed a voucher, which was nothing but a check drawn on the depository in favor of appellant, signed by Cole and Robinson. This, with the approval of Cole and Robinson, was carried to the county superintendent, Stewart, who approved it. These steps were requisite under the statute. Appellant, upon securing the endorsement of the county superintendent, carried the document to the depository, and was informed that there were no funds to pay it. This was in October. The bank, through its proper officer, bought the warrant or check for the bank, discounting it five per cent. The following February sufficient school money had come into the hands of the depository to pay the voucher. The voucher was cashed, that is, the depository paid the bank. The bank discounted the warrant between $18 and $19. It is also shown by Robinson that he hauled some of the lumber to the schoolhouse for the repairs, for which received pay. The son or some member of Mr. Cole's family, the other trustee, also received pay for hauling lumber to the schoolhouse to be used for repairs. Both Cole and Robinson testified that they authorized appellant to sign their names to the voucher approving it. So this testimony makes it clear and beyond controversy that Cole and Robinson, neither or both, ever let appellant have a dollar of any sort of money, school money or private money. Applying the law to the facts, the conclusion is irresistible that they could not have turned over to appellant any money legally, and did not in fact turn over to him any money. The only thing they did or could possibly do was to approve the voucher. Therefore, the allegations in the indictment could not be supported from that viewpoint. Under no aspect of the law, as I understand it, could the relation of principal and agent have existed, and facts stated by the witnesses as shown by this record.
The indictment presented no case, the facts disproved embezzlement, and this by the State's evidence. As I understand the law and the facts, this conviction is not sustained by the law and is disproved by the facts.
I therefore respectfully enter this my dissent.