On Rehearing.
MONROE, C. XThe conviction herein was set aside upon the ground, specifically stated, that the trial judge had erred in a certain portion of his instructions to the jury, to which it was added that, in any event, it would be necessary to remand the case for further information upon the question whether the defendant was present in court when the sentence was pronounced.
[1] The charge in the indictment (reduced to simpler terms) is that defendant willfully and feloniously appropriated to his own use $2,516.67 belonging to the Citizens’ Bank, of which he was cashier, the modus operandi being that he drew his personal check on the Citizens’ Bank in favor of the Rapides Bank & Trust Company, and, when the check was presented for payment, paid it with a cashier’s check against the funds of the Citizens’ Bank on deposit in the Rapides Bank, and then destroyed the check thus paid, without charging it to his own or any other account in the Citizens’ Bank, “thereby embezzling the funds of the Citizens’ Bank,” to the extent of the amount stated.
The trial judge instructed the jury in regard to the law applicdble to the crime of embezzlement in general, and with reference to the embezzlement charged as follows (quoting in part):
“Embezzlement is the fraudulent appropriation of the property of another by the person to whom it is intrusted. The appropriation must be made with a fraudulent intent, as the intent imparts to the act the character of an offense. By criminal intent the law means an intent to do an act forbidden by law, and an act is willfully done when done without reasonable belief it was lawful. Whether the intent was fraudulent or not must be determined from all the facts of the case. An intent to do an act forbidden, without reasonable belief it is lawful, is the intent required to convict. An intent to appropriate at the time of the appropriation must have existed to constitute the crime of embezzlement. The fraudulent appropriation is to be inferred from facts; for illustration, such as the denial of the reception, or suppression of facts of such reception; false accounts, or falsification of accounts, by the party charged; his refusal to account, or his concealment of the funds intrusted to him.
“Under section 907 of the Revised Statutes of Louisiana, under which act the accused is indicted, the actual custody of the money of the bank need not be shown to have been in charge of the accused officer to make out the charge for which the accused is indicted.
“To. warrant conviction in this case, it is necessary that the state prove to your satisfaction every essential and material allegation or charge in the indictment.
“Gentlemen of the jury, if you find, from the evidence that the accused was cashier of the Citizens’ Bank, and that, while he was cashier, he drew a check, against his individual account on the Citizens’ Bank in favor of the Rapides Bank & Trust Company for $2,516.67, and paid, or caused to be paid, the said check out of funds belonging to said Citizens’ Bank without in any way at that time accounting to the Citizens’ Bank for same, the transaction would be illegal and unlawful.
“If you find from the evidence that the accused embezzled or wrongfully converted to *569his own use money belonging to the Citizens’ Bank or on deposit there, but that the intention of the accused at the time of the conversion of the money was to restore it at some future date, the act would not be relieved of its criminal nature, and the act would be unlawful; and, notwithstanding the accused’s intention to restore the money at some future date, he would be guilty of the charge of embezzlement.”
Defendant excepted to so much of the charge as is included in the paragraph beginning with “Gentlemen of the jury” and ending with “unlawful” on the ground “that the same was not a correct exposition of the law; that it was, in effect, a comment upon the evidence and a direction of a verdict,” which objection having been overruled, the bill was reserved.
In the opinion heretofore handed down by the court it is said, inter alia;
“It was not a correct instruction to charge the jury that the defendant would be guilty of embezzlement if he had paid his personal cheek with funds belonging to the Citizens’ Bank (of which he was cashier) without at that time accounting to the Citizens’ Bank for the same; for he might have been innocent of any crime if he had accounted to the bank at some previous time.”
Neither the bill of exception nor the record indicates that any offer was made by defendant of evidence tending to show an accounting by him, whether before or after the event, with respect to his appropriation of the money of the bank; and it is well settled that “a judge is not required to instruct a jury upon a theory of a case which finds no support in the evidence.” State v. Matthews, 111 La. 962, 36 South. 48; State v. Anderson, 120 La. 335, 45 South. 267; State v. Sehon, 137 La. 83, 68 South. 221. Not only does it not appear that such evidence was offered; but the theory of the defense, as propounded in the latest brief filed in this court by defendant’s counsel, in effect concedes that no evidence of that character could have been offered, as it would not have been consistent with their theory or the facts. Counsel say that they pointed out to the trial judge the portion of the charge to which they objected, and stated their objection, which, in the absence of anything to the contrary, we take to have been the same as that now urged, and which, as we read the brief, amounts to this, that where one who has the money of another under his control appropriates it with the intention of using it for his own purposes, and so uses it, but with the intention also from the beginning of refunding it upon obtaining the necessary amount from a source upon which he relies, the intention to appropriate and use is controlled by the intention to refund, and the transaction becomes a loan, which is merely a misdemeanor, punishable by fine, under Act 193 of 1910, amended by Act 221 of 1916, notwithstanding that the money is appropriated and used without the knowledge or consent of the owner. The statutes mentioned deal with the matter of borrowing by officers of corporations, and where there is a borrower there must be a lender ; hence one who merely appropriates the property of another in his possession without the consent or knowledge of the owner is not a borrower, and the statutes referred to are not applicable to him.
After making the statement in regard to their objection to which we have above referred, the learned counsel proceed (in their brief) as follows:
“We have not the charge before us at this time, but we remember there was a paragraph in the charge immediately following the paragraph objected to wherein the judge charged the jury that, where an officer of a bank appropriates money belonging to the bank to his own use, the mere fact that he intended, at some future time, to replace it, would not relieve the offense of its criminal nature, but he would still be guilty of the crime of embezzlement.
*571“We submit that, when these two paragraphs are taken together, they absolutely deprive the defendant of the perfectly legitimate defense which he made in the case. It was tantamount to, and, in effect, charging the jury that, even if they should find that the defendant gave the check, honestly expecting to have the money to take it up when it came in, with funds which he expected to realize from the sale of the stock, and that, even though he held the check as a cash item and did take up the check with the stock, after the bank was closed, still he was guilty of the crime of embezzlement, a felony, when, under the law, * * '* the worst he could have been guilty of was a misdemeanor, and this notwithstanding that the court had previously charged that ‘intent’ was a necessary element of the crime.”
The statement thus quoted is leveled at two paragraphs of the judge’s charge, taken together, to one of which the counsel objected on the trial, and to the other of which no objection was made. To the paragraph that was objected to, the statement appears to us to have little or no application; and, as to the other, it ignores the facts that no objection was made thereto, and that the paragraph deals with the case of an accomplished embezzlement, and, in effect, instructs the jury that one cannot embezzle (i. e., intend to appropriate, and appropriate, the property of another to his own use) and escape the commission of the crime by at the same time intending to return or reimburse it at some later date; and it also ignores this court’s lack of information concerning the facts to which the statement refers and its lack of jurisdiction to determine, even were it better informed, whether such facts have been established.
Our reconsideration, of the case, therefore, leads to the conclusion that, in the absence of any evidence tending to show that defendant accounted to the bank for his appropriation of its money, whether at that time or previously, and in view of the defense relied on, the trial judge was not required to instruct the jury upon the theory that such accounting might have been made, and that the instruction as given could not have operated to defendant’s prejudice.
We find no reason for changing our ruling on the bills Nos. 1 and 2, and, in view of the opinion that we have reached in regard to one of the points presented by the assignment of errors, we find no necessity for passing upon the bills 4 and 5.
It is, however, assigned as error that the record discloses no legal indictment, in that the instrument copied therein and purporting to be a bill of indictment does not bear the signature of the foreman of the grand jury, and that it (the record) fails to show that defendant was arraigned, or that he was present in court, when the sentence was pronounced,. The record shows that defendant was arraigned, but it also shows that the indictment was not signed by the foreman of the grand jury, and it does not show that defendant was - present in court when sentenced.
It appears by weight of authority in this country, that it is unnecessary, in the absence of a statute requiring it, that the indictment should be signed either by all of the grand jurors or by the foreman of the grand jury. In some jurisdictions the signature of the foreman is required by statute and is essential to the validity of the indictment; and in others, though so required, the omission of the signature is not fatal. 22 Oyc. 251. We know of no statute of this state requiring the signature of the foreman of the grand jury, or of any one, to an indictment; but, although we have found no case in which the precise issue has been presented, it has several times been conceded by this court that, to be valid, an indictment must be signed by the foreman of the grand jury. In State v. Duncan, 8 Rob. 562, the question was whether an indictment was val*573id where the words “a true hill” and “foreman” were indorsed on it by some one other than the foreman, and it was held that those words might be indorsed on the bill by any person, under the direction of the grand jury; that “it is only necessary that the finding should be signed by the foreman, and it is not pretended that this formality was not observed,” etc.
In State v. Morrison, 30 La. Ann. 817, it-was held (quoting the syllabus) that:
“No indictment is valid which does not contain an indorsement of the- special crime charged, followed by the words ‘a true bill,’ and signed by the foreman of the grand jury in his official capacity.”
In State v. Logan, 104 La. 254, 28 South. 912, the court, after differentiating the case of State v. Mason, 32 La. Ann. 1018, categorically affirmed the ruling in State v. Morrison.
[2] In State v. Wilson, 126 La. 664, 52 South. 981, the ruling in both of the cited cases was, in effect, approved, and the case of State v. Mason was again differentiated. So far as we are informed, it has never been held by this court that an indictment can be valid which does not bear the signature of the foreman of the gi-and juiy, as such, and we find no sufficient reason for establishing a precedent at variance with that jurisprudence. Our conclusion then is that the record fails to disclose a valid indictment.
It is therefore ordered that the decree heretofore entered in this case be set aside; that the conviction and sentence, appealed from be annulled; and that the defendant be detained to await the further action of the district court and until discharged in dxie course of law.
O’NIELL, J., concurs in the decree.