On June 22, 1910, this case was affirmed. Appellant has filed a motion for rehearing and asks that the affirmance be set aside and that the case be reversed and remanded because the facts in the case show that if there was any embezzlement in this case the same was barred by the statute of limitation. The indictment in this case was returned against the appellant on the 28th day of October, A.D. 1905. It charges the offense to have occurred on the 13th day of December, 1902, and alleges the embezzlement of $2,050. The proof showed that Miss Emily Lewis had the defendant *Page 348 to act as her agent and attorney, and that on October 15, 1902 she turned over to the defendant $2,000 to handle and invest for her as her agent. About a year after she let the defendant have this money the demand was made on him for the same and he claimed that he had loaned this money on December 13, 1902, to a man by the name of John Ward and exhibited a note for that amount, covered by a mortgage on real property. It was discovered that this note was a forgery and no such man existed and no such property was in existence as was described in the mortgage. The State, after proving the delivery of the $2,000 and $60 to the defendant, proved the agency, the time of the delivery of the money, the demand that was made on the defendant, his representation that he had loaned the money and the falsity of this loan. The defendant then offered testimony of the deposit of this money in the bank by him and that on the same day that he had drawn out the sum of $540 and that at separate times from that day he had drawn out various sums, ranging from $15 up to $150. He makes the contention before this court that the act of embezzlement was complete when he drew out the $540 on the day the money was deposited in the bank and that this completed the offense on that date, and that the same was barred by limitation. We have not been cited to any authority, nor have we been able to find any authority that holds that where a lump sum of money is in the hands of an agent and he uses that money for his own purposes and draws it out, or appropriates it at different times and in different amounts that each withdrawal or appropriation of the sum, will constitute a separate offense; or that the intent would be fixed by his use of the money. This would simply be evidence of the appropriation of the money and the transactions would simply be continuous in their character. The statute makes it embezzlement to misapply, convert and appropriate money or property that may have come into the hands of a person as agent or attorney, or trustee, with a fraudulent intent to deprive the owner of the value of the same. This intent is gathered from the various and sundry acts that go to make up the complete conversions or misapplications which may be continuous in their character, and to hold that each withdrawal from the bank would constitute a separate offense, would be splitting up the transaction and making various and sundry offenses out of one criminal intent. Intent is incapable of direct proof. Therefore, great latitude is necessarily allowed in proving this element of the offense. Broadly speaking, any evidence is admissible which has a tendency, even the slightest, to establish fraudulent intent on the one hand, or on the other hand to show the bona fides of the accused. See Cyc., vol. 15, 529. As said by Judge Clark in the case of Leonard v. State, 7 Texas Crim. App., 417: "What is embezzlement? A fraudulent appropriation of the property of another, by a person to whom it has been intrusted. There is no settled mode by which this appropriation must take *Page 349 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." The charge in this case is the embezzlement of $2,050, belonging to Miss Emily Lewis, which had been intrusted to the defendant's hands. He had authority to draw this money out of the bank — all at once, or at different times. This act of withdrawal would not be a crime within itself, nor would the several withdrawals constitute different offenses. The first evidence that the State produced in this case of any act of fraudulent appropriation on the part of defendant was on the 17th day of December, 1902, when, for the first time, he makes a note purporting to be the act of one Ward for this money, and in order to deceive Miss Lewis he paid interest on that note for a year. We are constrained to hold that the act of embezzlement in this case took place on the day when he attempted to manufacture testimony to cover up the money that had been intrusted to him by Miss Lewis, and that the different acts of withdrawal of the money from the bank were but continuous acts of his that might be circumstances to develop the criminal intent. When was the criminal intent formed in this case, according to the testimony? Was it when this money was withdrawn from the bank? We do not know. But the State has fixed it as on the 17th day of December, 1902, when he attempted to conceal from Miss Lewis the whereabouts of this money which she had intrusted to him. In the Lawshe case, reported in the 57 Tex.Crim. Rep., 121 S.W., p. 865, this court held that where the employment and all the transactions were continuous and the proof raised no issue of an embezzlement of less than $50, it was sufficient to charge the jury that the accused could be convicted of felony if the sum embezzled was in excess of $50 without also charging that before the jury could convict the proof must show an embezzlement at one time of a sum exceeding $50. In the Lawshe case he was agent of the Missouri, Kansas Texas Railway Company at Sealy, and was agent for the American Express Company, and his duties intrusted him with moneys belonging to these different companies, and he was charged with the embezzlement of moneys belonging to the companies. In that case it was shown that he appropriated moneys at different times and the court gave them a general charge that if he was agent of the Missouri, Kansas Texas Railway Company, and had in his possession as their agent moneys belonging to them, and that he embezzled and fraudulently misapplied the same of the value of $50 or over they would convict. It was objected in that case that the court erred in not charging the jury that before they could convict, the proof must show an embezzlement at one time of a sum exceeding $50. This court held that it was not necessary for the court to have so charged. This court says: "Under the evidence appellant was entitled to receive the money, and it is for its *Page 350 fraudulent appropriation when so received by virtue of his agency that he is amenable to law. The testimony shows that the receipts of the office ran from $1,200 to $1,800 per month. The aggregate shortage is shown to be a sum largely in excess of $500. . . . The employment and all the transactions were continuous, nor was the issue of an embezzlement of less than $50 raised." The right of the defendant in this case was continuous to draw the money out of the bank at any time and in any amounts he saw fit, and it can not be said that each withdrawal constitutes an offense and that the fraudulent intent relates to the first withdrawal alone. When it was discovered that the note that defendant had in possession purporting to be executed by Ward was a forgery, the defendant fled the country. He was brought back and placed upon trial. The State relied upon the acts, as before stated, to make out a case and these acts did make out the case. We think limitation does not apply and that the offense was not barred, and, therefore, overrule the motion for rehearing.
Overruled.