Upon original consideration our attention was directed to the legal questions raised by appellant upon which he seemed to rely mainly for reversal. Our former opinion dealt chiefly with the legal questions involved. In considering this motion we have been called upon to give mature and careful scrutiny to the facts, or rather the lack of them appearing in the record.
The gist of the charge against appellant, as stated in the indictment, is that he "being the custodian of the hereinafter described bonds, did then and there fraudulently take, misapply and deliver to E. L. Twing" said described bonds. In order to support a conviction upon such an allegation there must be proof of some character of fraudulent taking, misapplication or delivery. In this connection we state that our conclusion announced in the original opinion, that an averment of fraudulent intent was not essential, should be qualified. The indictment in the present instance does charge a fraudulent intent and thereby imposed upon the state the burden of proving such intent. We have concluded that the state has not discharged that burden. It, therefore, becomes unnecessary to determine whether, under a proper construction of the statute quoted, one in an official position might be convicted if he delivered property belonging to the county to a person, knowing at the time that such person was not entitled to receive it, such delivery being made without fraudulent intent on the part of the officer. We have searched this record again and again for some proof showing a fraudulent intent on the part of appellant, or at least suggesting such fact, but we have been wholly unable to find same.
It is plain from this record that the commissioners court of Shelby county entered into a contract with Twing Company, represented by E. L. Twing, in April 1920, to sell said Twing Company a large number of road bonds theretofore issued by two road districts in said county. Twing Company made a written proposal to said commissioners court for the purchase of said bonds, stating what they would give and the conditions under which they would make the purchase. Under the proposition Twing Company were to print the bonds, have them approved and registered, and should pay $35,000.00 cash and the remainder in five annual installments, and that when the bonds *Page 354 had been approved and registered they should be placed in the Commercial State Bank of San Antonio, Texas, "subject to our orders." This proposition, signed by Twing Company per E. L. Twing, was accepted officially by the Commissioners' Court, whose order of acceptance, as same appears in evidence, contained this statement: "Upon the terms and conditions stated." Twing Company had the bonds printed and approved by attorneys, took them to the county seat of Shelby County where they were formally signed by the county judge, the county clerk and the county treasurer, and the seal of the court was placed on them, and they were taken presumably by Twing to the proper state officers at Austin for approval and registration. An inference is indulged that they were taken from Austin to the bank at San Antonio and there deposited, though no witness swears to this fact. It is however shown that in November, 1920, Twing reappeared in Shelby County seeking an order from the Commissioners' Court directing said bank to deliver said bonds to him. Two of the commissioners acting with the county judge, a quorum of the court, entered such order. Appellant was one of the two commissioners present when this was done. The road districts in question were in the commissioner's precinct of appellant and he seemed especially anxious to make the sale of the bonds. Munnerlyn, one of the four commissioners of the county, testified on this trial and said he was not present at the November meeting because sick in bed, though a car was sent for him. Mr. Oliver, who was the fourth commissioner of said county, did not testify, nor was there given any reason why he did not attend said November meeting. At said meeting of the Commissioners' Court a supplemental order was made reciting that the court had sold the bonds to Twing Company in April and that same were to be placed in the Commercial State Bank at San Antonio, Texas, "subject to the orders of E. L. Twing Company", and that as per said agreement $35,000.00 was to be paid, etc., which payment had been duly made, the receipt of which was acknowledged, and further that Twing Company deposited said bonds with the Commercial State Bank at San Antonio, and that the bank's duties in the matter had not been clearly specified. It was further stated in said order that the only duty put upon the bank was to use reasonable care to safely keep and preserve said bonds and deliver them to said Twing Company "when demanded by them". The substance of this order was embraced in a supplemental contract. It was further agreed in said supplemental contract that Twing Company should pay *Page 355 for said bonds over the period of time specified in the original contract. This supplemental contract evidenced by the order was signed J. L. King, County Judge, Shelby County, Texas; E. L. Twing Co., by E. L. Twing.
Manifestly no charge of a fraudulent delivery, taking or misapplication of said bonds could be made against appellant predicated upon the transaction had in the Commissioners' Court in April. It is not shown that he was present or participated in the execution of the bonds by the county judge, the county treasurer and the county clerk; nor had such bonds been then approved by the Attorney General or registered by the Comptroller at Austin. The inference from the testimony is that when the bonds were signed by the officers of Shelby County, Twing Company took them to Austin, had them registered and approved and took them to San Antonio.
There is not a suggestion in this record that appellant received a penny directly or indirectly from Twing or anybody else for what he did in his effort to effect the sale of these bonds. There is not a suggestion that he was in San Antonio when the bonds were delivered to Twing, if they ever were. We cannot concern ourselves with the carelessness of the transaction under discussion, nor the lack of business judgment on the part of the whole Commissioners' Court in the contract they made with Twing Company. If a county sees fit to elect commissioners who will make a sale such as evidenced by this contract, that is its business. We are only concerned with the proposition here that the record fails to show any fraudulent intent on the part of this appellant in the transaction. It is not claimed that he fraudulently took or misapplied the bonds. The only claim on the facts is that he fraudulently delivered them to Twing. We fail to find any evidence suggesting that he delivered them much less that he fraudulently delivered them to said Twing.
Being convinced of the correctness of this conclusion from careful examination of the record, we believe that the affirmance of this case should be set aside and the judgment of the trial court now reversed and the cause remanded, and it is so ordered.
Reversed. *Page 356