Section 20 of article 20 of the banking act of 1919 (Acts 1919, pp. 135, 216), which provides that “any officer, director, agent, clerk, or employee of any bank, who embezzles, abstracts, or wilfully misapplies any of the moneys, funds, securities, or credits of the bank, . . shall be punished by imprisonment and labor in the penitentiary for not less than one nor more than ten years,” sets forth certain distinct acts of embezzlement for the commission of which one accused of the embezzlement might be punished. Under the decisions of this court, “funds,” though of a somewhat similar nature with “moneys,” are not synonymous therewith. However, in Hargrove v. Lilly, 69 Ga. 326, 328, and especially in Marshall v. Clary, 44 Ga. 511, 512 (2), both of which judgments were rendered prior to the passage of the banking ace of 1919, the term “funds” was used in somewhat the same sense. In the passage of the act of 1919 it was clearly the legislative intent to penalize the embezzlement of funds which might not be money, or notes, which are not moneys or funds, as well as securities or credits of the bank which can not come within the definition of *756funds under the prior decisions of this court'; each as distinct acts for the commission of which one might be indicted and convicted. The statute being penal, it must be strictly construed. In the present case the defendant was charged with embezzlement of “moneys and funds of said bank.” Not being charged with embezzlement of notes, securities, or credits of the bank, under well-settled rules that the proof must correspond with the allegata, or, in other words, that one can not be convicted of a criminal act until he has been first charged therewith, the plaintiff in error could not be convicted in this case of the embezzlement of notes, securities, or credits. It was therefore error for the trial court to instruct the jury “that there must have been an embezzling, misappropriation, or defrauding or abstracting of either money, notes, or checks, or funds, or assets of the bank, before you would be authorized to convict the defendant.” Neither notes nor checks of the bank come within the definition of the term “moneys or funds” as specifically charged in the indictment which the accused was called upon to meet; and the Court of Appeals erred in affirming the judgment of the trial court refusing to grant a new trial. As well said by Judge Luke in dissenting from the judgment in this case in the Court of Appeals: “This charge was misleading and confusing to the jury, in that it authorized them to convict the defendant of embezzling, abstracting, and wilfully misapplying notes, or checks, or assets of the bank, when the indictment made no such charge.” Judgment reversed.
All the Justices concur, except