The offense is the substantive crime of conspiracy to commit the felony offense of misapplication of public funds by an officer as denounced by Article 95, V.A.P.C.; the punishment, two years.
In order to support such an indictment, the state was required to prove that the appellant conspired with the county officers, named in the indictment or any of them, to misapply the county funds.
Without going into details, the facts most favorable to the state may be stated as follows:
Prior to October 3, 1952, appellant’s law partner, Alaniz, had been indicted for a felony. Appellant was delegated custodian of funds contributed to assist Alaniz in the payment of the fee of his attorney. On the date above mentioned, appellant *39secured three drafts from the San Diego State Bank in the sum of $5,000 each, payable to the attorney representing Alaniz. On October 28, 1952, appellant executed and delivered to the San Diego State Bank three notes for the sum of $5,000 each, in payment of the drafts. Something like three and a half months thereafter, on February 11, 1953, two of these notes were paid, and the other renewed.
On July 15, 1953, the county auditor and the county treasurer of Duval County drew upon the treasurer of that county a warrant for $5,000, payable out of the funds of the county, which recited that the payment of the money was allowed by the commissioners’ court of said county at its July term, 1953.
The San Diego State Bank endorsed the warrant and received credit for the amount thereof at the Texas State Bank of Alice, which was the county depository, with which the San Diego State Bank had an account.
The evidence shows only circumstantially, if it does, that this $5,000 was applied by the San Diego State Bank to the payment of the renewal note of the appellant.
There is an absence of any testimony showing that appellant directed that the warrant be applied to the payment of his note or that he had any knowledge at the time that the warrant was to be so used or applied. There is an absence of any testimony from any source as to why the bank credited the warrant to the payment of appellant’s note. So far as this record is concerned, the bank used the warrant to pay appellant’s note of its own volition.
The county judge and one of the county commissioners named in the indictment, as defendants and parties to the conspiracy, were called as witnesses by the state and, after the prosecution against them had been dismissed by the state, testified, in eifect, that the commissioners court had never ordered the $5,000 warrant drawn and that the county was not, at the time, indebted to the San Diego State Bank in any amount.
It is interesting to note that, in the examination of these two witnesses, the state did not inquire of them if they had entered into the alleged conspiracy with him (the appellant), as the state had charged in this indictment against them.
The fact that the witnesses did not attest the existence of the *40conspiracy, as the state charges in the indictment, is a strong circumstance that they would not so testify and therefore that there was no conspiracy as alleged.
Finding the evidence insufficient to support the conviction, the judgment is reversed and the cause remanded.