Appellant courteously but earnestly insists that we erred in holding that the venue of the offense, if any, charged against him, was properly laid in Travis county. The indictment charged that appellant wilfully "Demanded and received from the State of Texas," a named sum of money purporting to be a fee for a certain official service, when in fact the service was not rendered. Most of the argument in appellant's motion against the correctness of our conclusion regarding venue seems directed at what we said relative to appellant having gotten his warrant in Travis county. We were merely stating the law applicable to the facts appearing, and did not intended to base our opinion that the venue of the trial was in Travis county, upon the fact that the warrant was gotten from the comptroller by appellant in Travis county. We have carefully considered appellant's argument in this regard, and are still of opinion that the venue was properly laid in Travis county, and wish to say, in addition to what we said originally, that since fees payable by the state are payable by and out of the state treasury, which is located in Austin, Travis county, Texas, the venue of every illegal collection and receipt of state owned fees prosecuted under article 365, P. C., would appear in every case conceivable by us at this time to properly be laid in Travis county, unless otherwise fixed by statute. The question of demand aside, the state parts with no fees, and is not deprived of any money as fees, nor does the officer or other person authorized to demand and receive fees, who holds fraudulent warrants or evidences of indebtedness against the state treasury, receive the money thereby or therein illegally called for, *Page 89 in so far as receipt thereof is made illegal by article 365, P. C., until same has been paid by or from the state treasury. The officer or other person authorized by law to demand or receive fees from the state of Texas, who wilfully uses an innocent agent, or wilfully sets in motion the machinery through whose operations, without knowledge of the wrong, the money is taken from the state and out of its treasury, — no matter where he starts his machinery or procures his agent, — must be held triable at the place where the money is gotten from the state, i. e., the place where the offense of reception of state funds is consumated or effected, and where the state parts with its money upon the false warrant or account.
In Sikes v. State (Texas Crim. App.), 28 S.W. 688, the appellant was in Houston, Texas, and induced an innocent agent, the freight agent of a railway company in Williamson county, Texas, some 200 miles distant, to remove from the owner's possession in Williamson county certain property, and to send it to him at Houston. Judge Hurt said: "The freight agent at Round Rock, who did take the wheels, was the innocent agent of appellant. He took them under the direction and at the request of appellant. He acted for him, and his possession was the possession of appellant. The agent was innocent of any guilty participation in the taking. The appellant was therefore properly indicted as the principal in the offense. The property was taken by Douglas, as the innocent agent of appellant, in Williamson county, and, as his acts were attributable directly to the appellant, the venue was properly laid in that county, for in law and in fact appellant took the property in that county. He who acts through another acts himself. Suppose that appellant had sent some one to Round Rock to get the wheels for him, and such person, being innocent in the transaction, had taken the wheels away. Is there any question that appellant would have been guilty as principal, or that the offense would have been committed in Williamson county? We think not."
The same matter is discussed and authorities cited in Houston v. State, 98 Tex.Crim. Rep.-5, 265 S.W. 585. The fact that the officer or other person whose account, warrant, etc., was the basis of the prosecution, and who inaugurated the movement whose consummation took the money out of the treasury, may have deposited such warrant or sold it outright in Bastrop, Texas, or Washington, D.C., would not seem in the least to affect the question of venue of the prosecution; nor would the fact that such warrant had to or did pass through various innocent hands or channels before it came to the state treasury in Travis county where the state is by such means induced to part with its money, alter the principle or affect the question of venue, under a proper application of article 68, P. C. The presence in our statute of this article and its interpretation by our courts makes inapplicable authorities cited by appellant. By what *Page 90 we have above said we do not wish to be understood as holding that one who by the use of a false warrant or evidence of indebtedness against the state defrauds some private person, may not be tried for such act in the county where it takes place.
Appellant urges that the indictment is bad; that the statute penalizes him who "collects" the false fee, while the indictment herein charges that appellant did so "demand and receive" such fee. It is the rule in this state that an indictment will not be bad if the verbiage thereof be of like or identical import as that used in the statute. Many cases are cited by Mr. Vernon in his Annotated C. C. P. under article 405 thereof, and other articles of the statute relating to indictments, which uphold the rule. Appellant specially insists that the indictment is bad for the reason that it does not state in so many words that the fee, etc., was received by appellant "for himself" or "for another," this being the language of said article 365, supra. We were of opinion originally, though we did not write upon the question, that the averment of the indictment, considered as a whole, makes plain that it was intended to charge the reception of the fee by appellant for himself. There seems no fundamental difference between the crime of an officer wrongfully collecting a fee as for himself or for another. The punishment is the same, and the element of wilfulness is necessarily in each case, but in the case before us it is alleged that the unlawful fee collected by appellant was a fee "for traveling thirty-four miles claimed to have been actually and necessarily traveled by him in serving a witness, * * * when in truth and in fact the said Townsend did not travel said thirty-four miles * * * and did not perform said service." It occurs to us that no possible doubt could exist of the fact that this language plainly charges a collection of the fee for himself.
The other points stressed by appellant is that the approval of appellant's account, containing the item now urged as wrongful, by the district judge of Bastrop county prior to the time said account was presented to the comptroller and the warrant issued to appellant thereon, was a judicial act with the full force and effect of a judgment of a court of competent jurisdiction, and that until such approval has been set aside in some direct attack thereon, it must stand as final and conclusive in appellant's favor. We think we correctly decided this point originally, but forbear a discussion of this contention in view of the fact that in the recent case of Rogers v. Lynn et al., 49 S.W.2d 709, our Commission of Appeals, Section A, in conjunction with and by direction of the members of our Supreme Court, has decided the same proposition adversely to appellant's contention, and overruled the authorities relied upon by him. We see no reason for trying to add to the discussion had by the Supreme Court in its opinion thus deciding, nor do we have any desire to hold to the contrary.
Being unable to agree with appellant, the motion for rehearing will be overruled.
Overruled. *Page 91