The offense is embezzlement; the punishment, confinement in the penitentiary for two years.
Omitting the formal parts, the indictment reads as follows: "Roy J. Daniel on or about the 26th day of April, A.D. 1934, and anterior to the presentment of this indictment, in the County of Wichita and State of Texas, was an officer of the Wichita County Democratic Executive Committee of Wichita County, Texas, a corporate body hereinafter called owner, and the said Roy J. Daniel did then and there fraudulently embezzle, misapply and convert to his own use, without the consent of the said owner certain money belonging to the said owner, to-wit: One Hundred Eleven Dollars and nine cents, lawful money of the United States, of the value of $111.09 which said money had come into the possession and was under the care of the said Roy J. Daniel by virtue of said office."
Appellant predicated a motion to quash the indictment upon the ground, among others, that a county Democratic executive committee is not a corporation or body corporate. Article 3118, Revised Civil Statutes, 1925, reads as follows:
"There shall be for each political party required by this law to hold primary elections for nomination of its candidates, a county executive committee, to be composed of a county chairman, and one member from each election precinct in such county; the committeeman from such election precinct shall be chairman of his election precinct, and the said county chairman shall be elected on the general primary election day; a county chairman by the qualified voters of the whole county, and the precinct chairman by the qualified voters of their respective *Page 662 election precincts. Said county and precinct chairman shall assume the duties of their respective offices on Saturday following the run-off primary immediately after the committee has declared the results of the run-off primary election. Said county chairman shall be ex-officio a member of the executive committee of all districts of which his county is a part, and the district committee thus formed shall elect its own chairman. Any vacancy in the office of chairman, county or precinct, or any member of such committee shall be filled by majority vote of said executive committee. The list of election precinct chairmen and the county chairmen so elected, shall be certified by the county convention to the county clerk, along with the other nominees of said party. If there are no requests filed for candidates for county and precinct chairman, a blank space shall be left on the ticket beneath the designation of such position."
In the case of County Democratic Executive Committee in and for Bexar County et al. v. Booker, 52 S.W.2d 908, the Supreme Court of this State held that a county executive committee can be sued only by bringing suit against the county chairman and the committeemen from each election precinct. We are constrained to hold that under the terms of article 3118, supra, the executive committee provided for therein is not a body corporate or corporation. Therefore the motion to quash the indictment should have been sustained.
The judgment is reversed and the prosecution ordered dismissed.
Reversed and dismissed.
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.
ON STATE'S MOTION FOR REHEARING.