This is a prosecution for the crime of embezzlement, under article 771 of the Penal Code, as amended by act of the Fifteenth Legislature, which is as follows:
“If any officer, agent, clerk, or attorney at law of any incorporated company or institution, or of any city, town, or county; or if any clerk, or agent, or attorney at. law of any private, person or copartnership ; or if any consignee or bailee of money or property, or town, city, or county scrip, or of any draft, promissory note, bank-bill, national bank-note, treasury-note of the United States of America, or any article of value, shall embezzle, or fraudulently misapply, or convert to his own use, without the-consent of his principal, employer, or client, any money, property, town, city, or county scrip, or any draft, promissory note, bank-bill, national bank-note, treasury-note of the United States of America, or any article of value/belonging to such principal, employer, or client, or the proceeds of such property, after the sale thereof, which shall have come into his possession, or shall be under his care by virtue of such office, agency, or employment; and if the value of the property, or money, or other article so *407embezzled, shall be twenty dollars or over, he shall be punished by imprisonment in the penitentiary not less than two nor more than ten years. If the value of such property, money, or other article shall be less than twenty dollars, he shall be punished as for theft of property under the value of twenty dollars. Within the meaning of money, as used in this article, is included any circulating medium current as money.” Gen. Laws 1876, p. 9.
After the defendants had been tried and convicted, and' after the overruling of a motion for a new trial, the sufficiency of the indictment was called in question, by a motion in arrest of judgment, set out in the record as follows :
“1. Because the indictment charged that the defendant John P. Griffin was the agent of the Texas Express Company, and, as such, received the money charged to have been embezzled, and also charges and lays the ownership of the money in the Paris Exchange Bank, and is, therefore, insufficient, and will not support the judgment of conviction of either of the defendants.
“2. The indictment is not sufficient to support the conviction of the defendant Maurice T. Griffin for embezzlement, for the want of an allegation that he was an agent, clerk, oh bailee of the Texas Express Company.
“3. The indictment is not sufficiently descriptive of the property embezzled to admit proof, and will not support the judgment.”
The motion in arrest of judgment was overruled, and the action of the court upon the motion is assigned as error. Agreeably to elementary writers on criminal law, when the statutes creating the offense of embezzlement were first enacted in England — where it originated, and from whence it has found its way to, and been legislated upon by, American states—it was originally intended to correct certain real or imaginary defects in the law of larceny; and it has been said of one of the first of these statutes (21 Henry VIII., ch. *4087) that it “ seemed to have been a sort of attempt to define and to extend the doctrine of larceny.” 2 Bishop’s Cr. Law, sec. 326. Upon examination, however, it will be found that, since the first enactment on the subject, it has taken a far wider range, both as to the subjects of the crime, as well as to the persons subject to its commission ; and, hence, we find an American author of high standing using the following language: “Our law of embezzlement, therefore, had its origin in the English statutes — not in the common law of England, nor in any statutes which, by reason of their early date, became common law with us.” 2 Bishop’s Cr. Law, sec. 330.
In this connection it should be noticed that whilst the statutes of England, to some certain date or reign, were adopted, together with the common law, by statutory enactment, in several of the American states, yet such was not the case in Texas. The statutes of England were never adopted as such in this state. Several definitions of the offense have been attempted — as, that “ the offense consists in embezzling such property as the statutes point out, and by such persons and under such circumstances as they •specify'or, .as proposed in New York, “the fraudulent appropriation of property by a person to whom it has been intrusted.” The author from whom we have been quoting prefers this definition: “ Embezzlement is the fraudulent appropriation of such property as the statutes make the subject of embezzlement, under the circumstances in the statute pointed out, by the persons embezzling, to the injury of the owner thereof.” 2 Bishop’s Cr. Law, sec. 332.
But of this the author says, in the conclusion of the section : “It is true that this does not appear to be really a definition at all; and, indeed, there is a sense in which it is not, because, of necessity, since the offense is statutory, we are,to look to the statute for its exact limits.” And, treating further of this subject, the same author has given the *409following well-timed admonition: “ Seeing that the statutes are numerous, and the provisions diverse, in some respects, from one another, the practitioner will be cautious about coming to conclusions upon a question under the law of embezzlement, unless, when he examines a decision relied upon, he first sees whether the statute on which it was render 3d is, in its terms, the same with the one in his own state.” Ibid., sec. 331.
We are of opinion that not only practitioners, but courts, might well give heed to the admonition.
Mr. Wharton, speaking of the English and American statutes concerning embezzlement, and the two gaps in the law of larceny they were intended to close up, so as to prevent the escape of the offender, says :
“To cure these defects were passed the embezzlement statutes of England and most of the United States. These statutes were intended simply to establish two new cases of larceny. If a servant (and this is the first of the two) steals his master’s goods before they have arrived into his master’s possession, he, the servant, shall be guilty of larceny. And the second is that it shall be larceny for a trustee or bailee to fraudulently convert to his own use his master’s goods he may have, bona fide, received. Now, as neither of these cases are larceny at common law, the statutes of embezzlement in no way overlap the old domain of larceny. They were passed solely and exclusively to provide for cases which larceny at common law did not include. Hence, nothing that is larceny at common law is larceny under the embezzlement statutes, and nothing that is larceny under the embezzlement statutes is larceny at common law. It is important to keep this in mind, as from missing this point some confusion in construing the embezzlement statutes has been produced. And by applying this text we find that the embezzlement statutes fall in two distinct and widely different classes: first, those meeting *410the case of servants and clerks appropriating their master’s property before it reaches his possession; and, secondly, those meeting the case of trustees and bailees appropriating goods of which they obtained possession bona fide.” 2 Whart. Cr. Law, 7th ed., sec. 1905.
From the opportunities afforded us to investigate authorities, and from the best reflection we have been able to bestow upon the subject, we conclude that the only safe guide in determining what acts will constitute embezzlement, and what persons occupy the relation to the subject upon which the offense may be assigned, will be found in our own Penal Code and its amendments, and the adjudications thereunder, invoking the aid of such light as we may derive from adjudications of other courts 'under statutes similar to our own.
There are two separate classes of cases defined in the Penal Code in which the crime of embezzlement may be committed. The first is that class found in chapter 3, title 6, of the Penal Code (Pasc Dig., art. 1854 et seq.; art. 235 of the Code), under the head, “Embezzlement or misapplication of public money.” To this class belonged the case of The State v. Brooks, 42 Texas, 62, where it was held that a deputy sheriff is an officer, within the meaning of the law punishing embezzlement of public money (which see for an indictment held sufficient).
The other class is found in chapter 10 of title 20 (Pasc. Dig., art. 2421; art. 771 of the Code), under the head of “Embezzlement of property by private persons,” and which, as we have already seen, was amended by act of the Fifteenth Legislature. Gen. Laws 1876, p. 9. It is to the latter class that the present case belongs, and it is by the amendment of article 771, made in 1876, that the sufficiency of the indictment against these appellants must be tested.
The counsel for the State, among other cases cited in *411support of the proposition that the indictment is sufficient, refer to the case of Riley v. The State, 32 Texas, 763. In that case a similar objection was urged to the indictment to the one set out in the first ground in the motion in arrest of judgment in the present case. The following extract from the opinion on the rehearing indicates sufficiently the basis of the decision : “ The learned counsel overlooked the provision of the Criminal Code which makes 6 embezzlement’ nothing more than a grade of ‘theft.’ The fifth subdivision of article 3096, Paschal’s Digest,- sajrs ‘theft includes all unlawful acquisitions of personal property punishable by the Penal Code.’ Then, the law of trial in a case of theft applies also to a case of embezzlement. The difference between them is only in the facts and circumstances under which they are committed,” etc.
Under some of the English statutes it is true that, under an indictment for embezzlement, if the proof failed to establish the charge, the party accused might, nevertheless, be convicted of larceny, if the proof justified; and something of the kind must have been in the mind of the judge in the preparation of the opinion just quoted from ; and the quotation above from Mr. Wharton tends somewhat in the same direction; yet it must be borne in mind that, by the Penal Code of this state, the two offenses of embezzlement and theft are entirely separate and distinct offenses; the term “theft,” in the Texas codes, being.synonymous with “ larceny,” as that term is employed in the English statutes and.at common law. It is true, as stated by the judge in the quotation just made, that one of the subdivisions of article 631 of the Code of Criminal Procedure (Pasc. Dig., art. 3096) enumerates the offenses which include different degrees, and, among them, “Theft—which includes all unlawful acquisitions of personal property punishable by the Penal Code ; ” yet it is only “ when.a prosecution is for an offense consisting of different degrees that the jury may find the *412defendant not guilty of the higher degree (naming it), but guilty of any degree inferior to that charged in the indictment.” Code Cr. Proc., art. 630 (Pasc. Dig., art. 3075).
Theft may include degrees, and is one of the offenses enumerated in the statute which does include different degrees, whilst embezzlement is not; and, whilst one indicted for theft might be convicted of any degree of fraudulent acquisition of personal property punishable by the Penal Code, inferior to that charged in the indictment —just as one indicted for murder might be convicted of any lesser degree of culpable homicide, on the ground that murder includes such other degrees — yet embezzlement is a separate offense, dependent upon its own circumstances, and does not include different degrees, as do murder, maiming, arson, burglary, and theft. We are of opinion that the opinion in Riley’s case is not supported by authority, and is not a correct interpretation and application of the provisions of the Code, and that we cannot regard it as a sound enunciation of the law; and, so far as this court is concerned, it will be considered as overruled in so far as it holds that an indictment for embezzlement will support a conviction on proof of theft.
In The State v. Johnson, 21 Texas, 775, Johnson was charged, under article 771 of the Penal Code, prior to the amendment of 1876, that he had, as clerk of an Odd Fellows’ lodge, received “ as clerk, as aforesaid, from divers persons, the sum of sixty dollars of the property of said corporate body, and did then and there convert said sixty .dollars to his own use, without the consent of his employers,” etc; and it was held that, for the reason that the indictment did not distinctly state that the defendant had the possession or care of this money, by virtue of his clerkship, when he converted it to his own use, it could not be sustained.
In that case the court says: “ It is the breach of trust that constitutes the gist of the offense.' Unless a duty or *413trust has been imposed, there can be no breach of trust. It is not every officer of an institution that is incorporated who can be held liable under this statute, by converting to his own use the money of the institution, but only such officers, clerks, or agents as have the money of their principal or employer (the institution), which shall have come to their possession, or shall be under their care, by virtue of said office, agency, or clerkship. A clerk, then, of an institution, who has nothing to do with its fiscal affairs, and who happens to be in possession of its money, or to have it under his care, otherwise than by virtue of his office or clerkship, is not indictable for its conversion to his own use, because the institution is not his principal in that sense, and has not employed him for that purpose, and has not trusted him with the money. In that case the treasurer would be his principal, or employer, and would have trusted him.” This language, whilst perhaps not strictly necessary to the decision, is useful as an interpretation of the statute under consideration, and indicates, not only that a trust relation must exist as to the funds embezzled, but that that relation must exist between the owner of the subject embezzled and the party accused.
In the same opinion it was further said : “ The increasing business of the country makes it necessary to trust men as officers, agents, and clerks with money and property who are entirely irresponsible in respect to their means of repayment, should they convert it to their own use; and who, however good their intentions might be at the time, might not be able to replace it, and who, if they are so disposed, often have the opportunity, from their position, of concealing the detection of its conversion by them. This statute is designed to furnish the principal, or employer, with some guaranty that such officer, agent, or clerk so intrusted shall not convert it to his own use at all, without the consent of such principal or employer.”
*414The same judicial interpretation of the statute, as it then stood, will apply with equal force to the amended form, so far as necessary to this investigation. As in the' original article, so in the amended article; the relations of officer and institution, of agent and principal, and of clerk and employer, and the relation to the article or thing intrusted to the officer, agent, or clerk are the same in each. The most material addition made by the amendment is to include the further relation of attorney and client, and to bring the money or property of the client, intrusted to the attorney by virtue of such relation, within its provisions.
In Wise v. The State, 41 Texas, 137, the indictment charged that the defendant was intrusted, as the clerk and agent of W. D. & Co., with the collection and receipts of their money, and this averment, in connection with the averment that, as such clerk and agent, he did receive the money, it was held, sufficiently showed that it was his duty, as clerk, to receive it, and that it was received by virtue of his clerkship. The indictment was held sufficient. In that case the accused was charged with having, as the clerk and agent of W. D. & Co., collected and misapplied the funds of his employers. In Block v. The State, 44 Texas, 620, the point decided was that an indictment for embezzling money will not be sustained by proof of embezzling United States currency, or national bank-bills; but there was no question on the sufficiency of the indictment.
The defect pointed out in the statute, as it then stood, was cured by the amended article so as to embrace within the subjects of .embezzlement, not only money, eo nomine, and property, but also town, city, or county scrip, drafts, promissory notes, bank-bills, national bank-notes, treasury-notes of the United States of America, or any article of value, or the proceeds of such property, after sale, coming otherwise within the purview of the statute; and it was further declared by the amendment that “ within the mean*415ing of money, as used in this article, is included any circulating medium current as money.”
We receive no further light from the Texas cases ; there have been no adjudications by the court of last resort construing the amendment to the Code under which this prosecution is attempted. We have already seen the additions made by the amendment to the original article.
It is a rule of construction of penal statutes which deprive the citizen of life, liberty, or happiness—which subject one to punishment or forfeiture, or to summary process — as well as all manner of statutes in derogation of common-law rights, that they are to have a strict construction; and, as said by Mr. Bishop, “ such statutes are to reach no further in meaning than their words ; no person is to be made subject to them by implication, and all doubts concerning their interpretation are to preponderate in favor of the accused.” This rule, however, must be held in subordination to the provisions of our own statutory rules of construction.
The amended article under consideration declares, with reference to the offense charged in the indictment, that if any agent of any incorporated company or institution, or of .any city, town, or county, or of any private person or co-partnership, shall embezzle, or fraudulently misapply, or •convert to his own use without the consent of his principal, any of the articles enumerated in the amendment — as, money, property, etc. — belonging to such principal, and which shall have come into his possession, or shall be under his care, by virtue of his agency, shall be punished, etc. The controlling words of the statute, so far as they relate to agents, are that the articles or things embezzled, etc., are belonging to such principal, or the proceeds, arising from sale, which shall have come into his possession, or shall be under his care, by virtue of such agency, and contain two elements ; first, the property, money, or other thing charged to have been embezzled, or otherwise misapplied, must be the property *416of the principal; and, second, that it be in the possession, etc., of the agent by virtue of his agency. This is the clear import of the words employed in the statute.
The indictment sufficiently charges the appellant John P. Griffin, as the agent of the Texas Express Company, with the receipt of the money alleged to have been fraudulently converted, and that he so received it in virtue of his said agency; but it is not averred that the money belonged to his principal, the Texas Express Company. But it is expressly averred that the money belonged to the Paris Exchange Bank; and between the bank and the accused no trust or fiduciary relation whatever is averred or intimated in the indictment.
The averment in the indictment makes the Texas Express Company the bailee or carrier of the money, and not the defendants. Because the indictment fails to charge any fiduciary relation between the owners of the money and the appellant, and because it fails to charge that the money belonged to the principal of the agent accused, or that the Texas Express Company had any property or interest in the money charged to have been embezzled, it is defective, and insufficient to support the offense defined in the statute. This defect in the indictment disposes of the case as to both the defendants, and necessitates the reversal of the judgment and the dismissal of this prosecution.
' Because the indictment is not sufficient to support the offense created by the statute, as herein first above set out, the judgment of the District Court of Lamar Comity is reversed and this prosecution is dismissed.
Reversed and dismissed.