The offense is misapplication of county funds; the punishment, confinement in the penitentiary for two years. *Page 493
Appellant was county clerk of Bexar County, having qualified for the term beginning January 1, 1933, and ending December 31, 1934. W. R. Beaumier was one of his deputies, and kept the books of the office. Beaumier testified, in substance, as follows: During appellant's campaign for the Democratic nomination to the office during the summer of 1934, he (appellant) used for campaign purposes funds belonging to the office in the sum of approximately $740. The witness and appellant executed a note payable to the Alamo National Bank in the sum of $750, which amount appellant used in paying part of his assessment to the Democratic Executive Committee. Late in 1934 it became evident that fees collected by the office were in such an amount that appellant would be required to pay into the treasury of the county a large sum as excess fees of office. Appellant and the witness entered into an agreement that they would draw checks upon the office funds upon the pretext of paying a bonus to certain employees and would deliver same to said employees, provided they would agree to pay back for the use of appellant the major portion of the proceeds of said checks. Acting for appellant, the witness approached certain employees and they became parties to the agreement. Thereafter the witness, acting as appellant's deputy, executed the checks and delivered them to said employees, who, in turn, delivered to the witness for the use of appellant the major portion of the proceeds of said checks. Julian Smith, one of the deputies, received from the witness a check in the sum of $500. Smith indorsed the check and delivered it to the witness. Pursuant to his agreement with appellant, he (the witness) took the check to the Alamo National Bank and used it to pay the balance of $500 remaining unpaid on the note heretofore mentioned.
The prosecution was predicated upon the transaction in which Smith was involved. It appears from the record that the checks Beaumier delivered to appellant's deputies were executed by Beaumier, as deputy clerk. It does not appear that appellant indorsed any of said checks. The check of Julian Smith, which Beaumier used to pay the note heretofore mentioned, was indorsed by Julian Smith and Beaumier. Other than the testimony of Beaumier and the deputies who entered into the agreement referred to in Beaumier's testimony, the State relied upon circumstantial evidence to connect appellant with the alleged offense.
At the time of the trial Beaumier had been indicted for his participation in the transaction, and the trial judge charged *Page 494 the jury that he was an accomplice witness as a matter of law. As to the other deputies who testified to having participated in the transaction, the court declined to instruct the jury that they were accomplice witnesses as a matter of law, but submitted the matter as an issue of fact. Appellant timely and properly excepted to the charge, suggesting in the exception that the court should not submit to the jury the question as to whether the witnesses were accomplices, but should instruct that they were accomplices as a matter of law. The opinion is expressed that the exception was well taken. When applied to evidence, the term "accomplice" means a person who, as a principal, accomplice or accessory, is connected with the crime by an unlawful act or omission on his part, transpiring either before, at the time of, or after, the commission of the offense, and whether or not he was present and participated in the crime. Dooley v. State, 7 S.W.2d 96; Haynes v. State,18 S.W.2d 1081; Benavides v. State, 60 S.W.2d 436. That the deputies who received the checks in question and paid back part of the proceeds to Beaumier did so for the purpose of aiding appellant to use the money for his own benefit was uncontroverted. Beaumier, as well as said deputies, including Smith, testified that they had previously agreed to participate in the transaction to the end that appellant might receive the benefit. Under the circumstances, said witnesses were accomplices as a matter of law, and the jury should have been so instructed.
For the error discussed, the judgment is reversed and the cause remanded.
Reversed and remanded.
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 MOTION FOR REHEARING.