(dissenting).
I have concluded that this conviction cannot and should not be affirmed under this record. In support of that conclusion, I submit the following:
Here, the indictment upon which this conviction rests charged, in effect, that appellant, as an officer, servant, and employee of the Physicians Life and Accident Insurance Company of America embezzled by converting to his own use “two hundred twenty five thousand dollars in current money of the United States” which belonged to the insurance company and which had come into his possession by reason of his aforesaid fiduciary relation to the insurance company.
There was no allegation in the indictment that appellant acted with any other person or persons in committing the alleged embezzlement.
In keeping with the mandate of Art. 1534, P. C., the trial court instructed the jury that four elements were necessary to establish the crime of embezzling: (See, also, Fellers v. State, 138 Tex. Cr. R. 307, 136 S.W. 2d 217.)
“1. That the defendant was the agent of the person or corporation, as alleged, and by the terms of his employment was charged with the duty of receiving .the money of his principal.
“2. That he did so receive the money belonging to his principal.
*43“3. That he received it in the course of his employment.
“4. That he embezzled, misapplied or converted it to his own use, without the consent of his principal or employer.”
The case was also submitted under the law of principals, by the following charge:
“ * * * All persons are principals who are guilty of acting together in the commission of an offense, and principals, whether jointly indicted or not, may be legally prosecuted and convicted as such, provided the evidence adduced against each clearly and satisfactorily establishes the guilt of each. Where an offense has been committed, the true criterion for determining who are principals is, ‘Did the parties act together in the commission of the offense?’ ‘Was the act committed in pursuance of a common intent, and in pursuance of a previously formed design in which the minds of all united and concurred?’ If so, then the law is that all are alike guilty, provided the offense was actually committed during the existence and in execution of the common design and intent of all, whether in point of fact all were actually bodily present on the ground where the offense actually took place or not. * * * ”
In connection with and as a part of that charge, the jury were told, in effect, to convict appellant if they believed that he, alone or “acting together with G. B. Hamman, or George S. McGhee, or James T. Valentine, or R. A. Stuart, or all of them,” embezzled as much as $50 in money belonging to the insurance company.
It was under such indictment and charge that appellant was convicted.
I have concluded that the charge upon principals was neither pertinent nor authorized under the allegations contained in the indictment and under the facts in evidence.
While it may be true that, generally speaking, all persons are principals who are guilty of acting together in the commission of a crime, such is not true and can not be true of the crime of embezzlement, which is the offense here charged and for which appellant has been convicted.
*44The reason for that statement lies in the fact that only members of a certain class can commit the crime of embezzlement. Unless one is within or is a member of that class he can not be guilty of embezzlement.
The class mentioned is comprised of those who bear a fiduciary relation to the injured party, such as an officer, a clerk, an employee, or an attorney at law or in fact of an incorporated company (Art. 1534, P. C.).
The indictment in this case alleged only that the appellant was guilty of the crime of embezzlement, in that he, as an officer, agent, servant, and employee of Physicians Life and Accident Insurance Company of America, embezzled the money of that company. The indictment did not allege that the others, or any of them with whom the appellant was acting, were members of the class that could be guilty of embezzling money of the insurance company.
Notwithstanding such fact, the jury was authorized to convict appellant if he acted with such other persons in embezzling money from the insurance company. In other words, if the jury believed that Hamman, McGhee, Valentine, and Stuart, or any of them, embezzled as much as $50 from the insurance company and that appellant acted with them or any of them in the commission of that embezzlement he would be guilty.
Such is not the law, and is not a correct legal principle applicable to this case.
The case of Quillin v. State, 79 Tex. Cr. R. 497, 187 S.W. 199, is directly in point. The crime there involved was one which could be committed only by members of a class — that is, by a public officer charged under the law with receiving public funds. The public officer there involved was one Druesedow, Harris County tax collector, who the indictment alleged embezzled funds of that county which came into his possession by virtue of his office. Quillin was not an officer of the county and was not a member of the class which could commit the offense of embezzlement of county funds. To constitute Quillin a principal to the commission of embezzlement by Druesedow, the indictment contained the additional allegation that he, Quillin, acted with Druesedow in the commission of the offense charged. Quillin’s guilt was dependent upon the guilt of Druesedow as the guilty officer.
*45Upon appeal, Quillin insisted that inasmuch as he was not one of the class to which the offense charged applied he could not be guilty, either alone or as a principal with Druesedow.
The contention was overruled by the court after a lengthy discussion, the court pointing out the following:
“If the offense in this instance had been murder, arson, rape, or any other felony, it would have been wholly unnecessary to have made any allegation at all about Druesedow. Quillin could have been charged directly with having committed the offense, although Druesedow was merely a principal by reason of what he did or said. It was only because under this particular law Druesedow was in a class who alone could directly commit such a crime that it was necessary to allege what he did at all. Then, after making the necessary allegations which the indictment did as to Druesedow, it was only necessary as to Quillin to allege as it did, that he did unlawfully, willfully, and fraudulenty act together with Druesedow in the commission of the said offense; this is the very language of the statute. No other allegation whatever as to what Quillin said or did was necessary.”
What that case holds is that (a) one not a member of the class to which the statute applies may be guilty of violating the statute by acting with one who is a member of the class; (b) for a non-member of the class to be guilty of acting with a class member in the commission of a crime the indictment must allege that the non-class member acted with the class member in its commission; and (c) under no circumstance can one be guilty of violating a law applicable only to a class unless it is shown that he was the principal offender and a member of that class or that he acted with the principal offender who was a member of the class to which the statute applies.
As supporting that conclusion, see 12 Tex. Jur., p. 332, 5 A. L. R. 773; 144 A. L. R. 597; and 131 A. L. R. 1322.
In the instant case, then, Hamman, McGhee, Valentine, and Stuart, or any of them, could not be guilty of acting with appellant in the commission of the embezzlement, there being no allegation in the indictment that said parties acted with appellant in the commission of the crime of embezzlement.
*46For the same reason and by the same process of reasoning, appellant could not be guilty because he acted with said parties or any of them in the embezzlement. In other words, under this indictment for the offense of embezzlement only appellant, and he alone, could have been convicted for that crime and he could be convicted thereof only upon proof that he committed the crime. He could not be guilty of aiding Hamman, Valentine, McGhee, and Stuart, or any of them, in committing the embezzlement. Such persons were not alleged as occupying a fiduciary relation to the injured company so as to bring them or any of them within the class to which the crime of embezzlement applies.
Such being true, there was no occasion to submit this case upon the law of principals, for that law had no application under the allegations of the indictment. Appellant’s guilt under the indictment being restricted to proof that he, himself, committed the embezzlement rendered the charge on principals entirely uncalled for and wholly irrelevant.
The submission of the case upon the law of principals and allowing appellant’s conviction thereunder could not have any effect, therefore, other than to injure the rights of the appellant by authorizing his conviction for a crime upon facts which did not constitute such crime under the allegations of the indictment.
The undisputed evidence shows that on May 8, 1955, Ham-man, as vice-president, and McGhee, as treasurer of the insurance company, drew a check payable to the Empire State Bank in the sum of $75,383.34 against funds of the insurance company on deposit with said bank.
On May 31, 1955, Yost, as president, and Hamman, as secretary of the insurance company, drew a check payable to the Empire State Bank in the sum of $25,205.55 against the funds of the insurance company on deposit with that bank.
On July 11, 1955, Yost, as president, and Hamman, as secretary of the insurance company, drew a check payable to the investment corporation in the sum of $124,507.88 against the funds of the insurance company on deposit with the Empire State Bank.
On the same day (July 11, 1955), the investment corporation, to which the above check was payable, drew a check through *47Geo. S. McGhee, as treasurer, by G. B. Hamman, against the funds of the investment corporation on deposit with the Empire State Bank, payable to that bank in the exact amount ($124,507.88) of the above mentioned check.
By these two checks the insurance company transferred to the investment corporation $124,507.88, which amount the investment corporation paid to the Empire State Bank.
Each and every one of the checks drawn against the funds of the insurance company bore the notation that same was in payment of first lien notes and mortgages.
I have expressly referred to the three checks drawn on the funds of the insurance company to demonstrate that those are the only checks in this record through and by which funds of the insurance company were withdrawn from any bank.
The injury to appellant by the giving of the charge on principals is thus demonstrated, for the jury were authorized to convict appellant if he acted with the drawers of any of those checks in embezzling the funds of the insurance company.
While it is true that appellant did not level an exception to the charge for the reason that the case was erroneously submitted upon the law of principals, yet his exception seeking to have the law of principals applied to the facts and seeking a charge upon the converse thereof is deemed sufficient to call to the trial court’s attention the error in submitting the case upon the law of principals.
However, whether a proper exception was or was not reserved to the charge is, in my opinion, wholly immaterial. The authorizing of appellant’s conviction upon facts not constituting the offense charged or within the allegations of the indictment was fundamentally erroneous.
In addition to the error discussed, I am convinced that the facts do not show appellant guilty of the crime of embezzlement. First, let it be understood that there is no showing that appellant received and converted to his own use any money belonging to the insurance company. The checks drawn were not payable to him. The money from the checks went to the investment corporation.
*48The theory upon which this case was tried and the conviction obtained is very clearly and pertinently set forth in the brief for the state wherein it is said:
“ * * * appellant and his co-promoters (meaning Hamman, McGhee, and Valentine) caused the Life Company to transfer sufficient funds from the sale of its primary stock to the public to the Physicians Investment Company, which Investment Company used the money to pay off the personal notes of the promoters, including appellant Parnell.”
In affirming this conviction the majority opinion adopts and accepts that theory and states as follows:
“But the acceptance by these officers (appellant, Ham-man, McGhee, and Valentine) of their notes and the release of the securities and property pledged to secure their payment upon their having been paid with funds of their principal constituted the appropriation of the money to their own use, and was evidence of their fraudulent intent.”
So it definitely appears that there is no showing and the state appears not to contend that the money of the insurance company on deposit in the bank was in appellant’s possession, or that he had received and come into possession of that money for and upon behalf of the insurance company in the course of his employment as an officer, agent, or employee of the insurance company.
To the contrary, the money was in the actual possession of the bank and in the constructive possession of those officers of the insurance company who signed the checks by which the money from the bank was withdrawn, appellant not being one of such officers.
It is apparent, therefore, that appellant is here adjudged to be guilty of the crime of embezzlement because, as an officer in the insurance company, he permitted the funds of the insurance company to be used to acquire his note from the owner thereof, viz, the investment corporation — and this, under an indictment which charged that appellant converted to his own use money which belonged to the insurance company.
In other words, it is here, in effect, judicially determined and announced as a correct proposition of law that when a cor*49poration purchases an automobile with a check of that corporation signed by its officers and that automobile is thereafter stolen by one of those officers the officer may be prosecuted for and convicted of embezzling or stealing the money with which the automobile was purchased, rather than the embezzlement or theft of the automobile, itself.
To such holding I do not and can not agree.
In the first place, I know of no rule of law more thoroughly established in this state than that which says that to be sufficient to convict the proof must establish the material allegations of the indictment and that unless it does so establish a conviction can not stand. 21A, Tex. Digest, p. 212, Key 171, and authorities there collated.
Under the law, appellant was warranted in assuming that the state would be required to prove and that his guilt or innocence would be made to depend solely and alone upon evidence showing that he embezzled “current money of the United States,” which means, according to Art. 1544, P. C., “gold, silver, copper, or other coin, bank bills, government notes, or other circulating medium current as money.”
In his charge, the trial court authorized the jury to convict appellant only if he embezzled or acted with Hamman, McGhee, Valentine, or Stuart in embezzling “ * * * any amount of money of the value of fifty dollars or over, belonging to the Physicians Life and Accident Insurance Company of America * * * .”
Where is the evidence which shows that the state discharged the burden assumed by it to prove the embezzlement of money? Where is the evidence which authorized the jury to find that appellant embezzled money? Those questions are answered in the negative by the facts in this case. There is no evidence that appellant embezzled and converted to his own use any “current money of the United States” belonging to the insurance company.
State’s counsel admits and my brethren, in affirming this conviction, agree that appellant’s guilt depends solely upon the conversion by him of his own promissory note which was purchased or obtained with funds of the insurance company in the actual possession of the bank upon which the check was drawn.
*50It is apparent, therefore, that when this conviction is affirmed under these facts, it is no longer the law of this state that the evidence in order to be sufficient to sustain a conviction must establish the material allegations of the indictment.
But the error does not stop there. The conviction is affirmed for the embezzlement of property neither described nor alleged in the indictment.
I had always understood that it was the burden of the state, especially in theft or embezzlement cases, to describe in the indictment the property alleged to have been converted at least sufficiently to identify it and to place the accused on notice of the accusation against him.
However, this is no longer the rule. All that is now necessary is that the indictment allege the embezzlement of some personal property. Under such an allegation the state can then prove the embezzlement of any personal property of any description or character.
This appellant is convicted of embezzling a promissory note which is neither described nor identified in any particular in the indictment.
Yes, the rule no longer exists which says that one accused of crime is entitled to know from the indictment the offense with which he is charged with having committed and to know from the indictment the property he is alleged to have embezzled.
All those matters pale into insignificance, however, when compared to the failure of the indictment to allege the value of the note which was alleged to have been embezzled. The allegation of value of the property stolen or embezzled is jurisdictional and must be stated in the indictment. The penalty ascribed renders the offense of embezzlement either a misdemeanor or a felony. Arts. 1421, P. C., 1422 Vernon’s P. C., and 1534 P. C.
Jurisdiction of a trial court over a criminal case embodies the following three essential elements, viz., (1) jurisdiction over the subject matter, (2) jurisdiction over the person, (3) jurisdiction to render the particular judgment which was rendered.
*51If any one of these jurisdictional elements or factors is lacking, the judgment rendered is fatally defective and void. 12 Tex. Jur., Sec. Ill at page 386.
The indictment in this case conferred jurisdiction on the district court to determine the issue as to appellant’s guilt of embezzling money in excess of $50 in value from the insurance company — which was the subject matter to be determined. It did not confer jurisdiction upon the trial court to try and to convict appellant of another and different offense — that is, embezzlement of a promissory note.
Appellant’s arrest under that indictment conferred jurisdiction of the trial court over his person to try him for the offense alleged in the indictment.
The first two essential elements — that is, jurisdiction of the subject matter and of the person — were shown in the trial court only to the extent contained in the indictment.
What about the third requisite? The judgment rendered herein was based upon the undisputed evidence which showed that appellant was not guilty of the offense of embezzling money, as charged in the indictment. When the evidence failed to establish that jurisdictional element, the trial court lost jurisdiction to render any judgment other than one finding appellant not guilty.
Jurisdictional authority did not exist which would authorize the adjudication of appellant as guilty of some other offense or of the embezzlement of property not described in the indictment.
There being no allegation in the indictment that the note alleged to have been embezzled was of a value of $50 or over, the district court did not have jurisdiction to render the judgment which was here rendered adjudiciating appellant guilty of embezzling a note of the value in excess of $50, a felony.
I now call attention to the rule of law which I pointed out in my dissenting opinion in the case of Cage v. State, 167 Tex. Cr. R. 355, 320 S.W. 2d 364, as to the distinction between the crime of embezzlement and that of theft, wherein I quoted from 18 Am. Jur., Embezzlement, Sec. 12 p. 577, as follows:
“ ‘The principle is well established that an essential element of embezzlement is the conversion of the property law*52fully in the possession of the accused. If the property is in the actual or constructive possession of the owner, the offense is larceny * * * . Generally, it may be said that mere custody of property as distinguished from possession does not suffice to support an accusation of embezzlement * * * . The reason' for this rule is that if a person gains possession of property so as to constitute only a bare charge or custody, such custody does not divest the possession from the true owner and the appropriation of the property under such circumstances amounts to larceny, and not embezzlement.’ ”
Such rule is applicable here. The note which appellant was alleged to have stolen was in the constructive possession of the insurance company after its funds had gone into the purchase of the note. If appellant obtained the note, he obtained only the custody thereof without divesting the insurance company of its ownership as well as possession of the note, and the offense he committed thereby was that of plain theft of the note.
The value of the note rested in the obligation of appellant to pay and in the securities guaranteeing the performance of that obligation. Mere possession of the note by appellant did not destroy that obligation or its value. The insurance company owned the note and the obligation. Appellant’s acquisition thereof did not destroy the note or the obligation.
In this connection, I call attention to the fact that in theft cases it is only necessary that the thief take the property with intent to appropriate it to his own use and benefit. Art. 1410, P. C.
Such is not true of the crime of embezzlement. To be guilty of that crime the embezzler must actually embezzle and convert to his own use the property embezzled.
In conclusion, absolute candor impels me to admit that when I agreed to the affirmance of this conviction originally I did not understand or recognize in this record the errors which I have here pointed out.
Being now convinced that this conviction should not be permitted to stand because of the reasons set forth, I should not hesitate to say so.
I respectfully dissent.