Appellant has filed motion for rehearing in which he vigorously contends that we were in error in holding Little to have been the special owner of the Bank's property at the time of the robbery. We did not set out the testimony in full on the subject in the original opinion, but reached the conclusion that there was no merit in appellant's contention.
Little was assistant cashier; in the absence of Brashear, the cashier, he performed all the duties of the cashier; Brashear was out of the city at the time of the robbery, and had been for two or three days; McNally, the president of the bank, was in the city, but not in the bank when the robbery occurred. Counsel for appellant lay stress on the fact that the evidence disclosed that Little was a "salaried" man, and therefore a servant of the bank, and special ownership could not therefore be alleged in him.
All officers of banks are salaried men, from the president down, and in the sense that they are subject to the will of the directors, are servants of the bank; but being a corporation, the bank can act only through its officers; Little in this case was one of the officers through whom the bank acted. We are referred to Hasley v. State, 87 Tex.Crim. Rep., 222 S.W. Rep., 597, and counsel quotes from the opinion the following: "Mr. Gibbs was simply a servant, with the custody of the property, under the supervision of Spence, and there was no evidence to support any other theory;" then urges that if Judg *Page 292 LATTIMORE was right in that opinion, then, the court is wrong in the former opinion in this case. We believe the Hasley opinion is right, but do not agree with counsel that it must necessarily follow that the present one is wrong. In the Hasley opinion, the very paragraph succeeding the one from which the above quotation is taken reads: "Care, control, and management are not necessarily exclusive in one person, but may be joint in several, within the comprehension of our law of theft; and, unless the evidence raises the issue of exclusive care, control, and management in some person other than the one named as the owner in the indictment, it is not necessary to present such issue to the jury." In view of the insistence of counsel for appellant upon this issue, we have again carefully examined the evidence, and believe we are justified in reaching the conclusion that the money of the bank was in the joint control, care and management of the president, cashier, and assistant cashier, and that ownership could properly be alleged in the assistant cashier; especially is this true where he was the only officer of the bank present at the time of the robbery. There was no such exclusive control, car, and management of the president, McNally, as made it necessary to aver ownership in him to the exclusion of the other officers; and the fact that he may have exercised general supervision under the direction of the board of directors would not change the rule.
Appellant contends the testimony raised an issue as to whether Little was in actual control, care and management of the money, and that the trial judge committed an error in failing to submit such issue to the jury. If the issue was fairly raised it ought to have been submitted. We cannot agree with the contention that it was raised. When the whole evidence is considered it clearly reflects Little's relation to the money; leaves no disputed ground, and fairly construed, raises no such issue; and we believe the court would have been wholly unwarranted in submitting it. What we have said above applies with equal cogency to the contention that the court ought to have submitted the question as to whether Little was a mere servant of the bank.
Appellant complains because we did not discuss his assignment of error to the court's failure in his charge to define "money." It has been held in many cases that it was sufficient description of the property stolen simply to say it was "money." We do not take the time to cite the many cases, but some of them will be found collated under Section 619, Branch's Crim. Laws. It has also been decided in many cases that an allegation that property was "money" will be held to mean the money of the United States. The evidence in the instant case describes the property as twenty, ten and five dollar bills, and repeatedly refers to the same as "money." If it is sufficient to describe the property as "money," and if that means United States money, and the evidence follows the description, and the property is continually referred to as "money" the averments in the indictment are sufficiently met by the proof. Some of the cases cited by counsel for appellant in *Page 293 his brief on this point have been expressly overruled, and others by a general statement that all cases in conflict with the following are overruled. Berry v. State, 46 Tex. Crim. 420; Ferrell v. State, 68 Tex.Crim. Rep.; Sparks v. State, 77 Tex.Crim. Rep., 177 S.W. Rep., 968. It was not necessary for the court to define the term "money." The confusion formerly existing upon this point we regard as settled by the overruling cases last above cited.
Being unable to agree with the counsels contentions that our former opinions is erroneous, the motion for rehearing is overruled.
Overruled.