Conviction for misapplication of public funds by officer of incorporated city, punishment confinement in the penitentiary for five years.
Art. 95, P. C., denounces the offense of which appellant was convicted. He was charged with committing the offense while holding the office of tax collector of the City of Lubbock. It was incumbent upon the state to establish in evidence beyond a reasonable doubt that appellant held the office described in the indictment. Dickey v. State, 144 S.W. 271; Warsick v. State, 35 S.W. 386; Taylor v. State, 16 S.W. 302. *Page 183
The burden in the respect mentioned would have been discharged by establishing that appellant was city collector de facto. An officer de facto is criminally liable for malfeasance in office. Florez v. State, 11 Tex. Ct. of App. 102; Mechem on Public Officers, Section 336; Cyclopedia of Law and Procedure, Vol. 29, p. 1394; Bishop on Criminal Law (9th Ed.), Vol. 1, p. 339.
The charter of the City of Lubbock provided for the office of city secretary and that of city tax collector. The city commission had authority to consolidate said offices. No such action had been taken, and on the date appellant was alleged to have committed the offense, he was performing the duties of secretary, having been appointed to that position by the city commission, and, according to the state's testimony, he was also performing the duties of tax collector, having acted in the capacity of tax collector for several years with the acquiescence and recognition of the governing body of the city and the public generally. Under the city charter, an official was prohibited from at the same time holding more than one office. According to appellant, he occupied the position of city secretary and one Holland was tax collector. In support of his contention, appellant showed that he had employed Holland as tax collector pursuant to a resolution of the city commission; that Holland had drawn his salary from the city for his services, maintained an account in the bank as tax collector, and performed generally the duties of the office; and that he, appellant, drew only his salary as city secretary. Holland had never executed a bond and taken the official oath prior to the indictment of appellant. He disclaimed any right to the office and asserted that he was appellant's deputy collector. Other than that the record shows that appellant entered into bond in 1923, in an amount required of the city tax collector, the record is silent as to the appointment of appellant to the office of tax collector. Also the record fails to show that he duly qualified as city secretary.
The state's testimony shows that appellant's claim to the office of tax collector was open and notorious, which together with his performance of the duties thereof for several years with the acquiescence and general recognition of the governing body and citizenship, established his reputation of being the officer he assumed to be. Such facts are sufficient to constitute one a de facto officer. In the case of Ex Parte Tracey, 93 S.W. 538, after discussing many cases dealing with the subject of de facto officers, Judge Henderson said: *Page 184
"In all these cases the doctrine is announced that, while a de facto officer may be one who holds under a color of election or appointment, which may not be altogether regular, there is still another class who may be de facto officers without regard to any election and appointment; that is, one who exercises the duties of an office for a length of time, and acquiescence on the part of the authorities and of the public. In such cases the incumbent, regardless of his induction, may be considered a de facto officer. The whole doctrine of de facto officer is founded upon policy and necessity, in order to protect the public and individuals where they may become involved in the official acts of persons discharging the duties of an office, without being lawful officers."
See also Burkhardt v. State, 202 S.W. 513; City of Christine v. Johnson, 255 S.W. 629; Cooley's Constitutional Limitations (8th Ed.), p. 1356; R. C. L., Vol. 22, Sec. 315, p. 594; McQuillan's Munic. Corp., Vol. II, Sec. 480.
The fact that appellant performed the duties of secretary and collector at the same time did not, within itself, divest him of the character of tax collector de facto. If Sec. 40, Art. 16, of the Constitution, which prohibits one person from holding or exercising, at the same time, more than one civil office of emolument, was applicable to appellant's case, he was merely rendered ineligible by virtue thereof to hold the office of tax collector. Of like effect was the prohibition of the city charter upon the subject. A person may be a de facto officer though ineligible to such office. Broach v. Carth et al., 50 S.W. 594; Graves v. M. Griffin O'Neil Sons,189 S.W. 778. In the case of Woodside v. Wagg, 71 Maine Rep. 207, the court was concerned with the question of the validity of the acts of a judge who had vacated his office by accepting an election to the legislature. After qualifying and acting as a member of that body, he performed the acts in question, as judge of a court. In upholding the validity of his acts, the court referred to the fact that the offices of judge of the municipal court and member of the legislature were incompatible under the Constitution of the State of Maine and that the acceptance and qualification for one of the offices while holding the other would be a resignation from the first office. The court stated the question under consideration thus: "But the immediate question under consideration is, what was the character of his acts, as to validity or invalidity, during such continuance in the exercise of the duties of his judicial office, after expiration of the legal tenure. They must be void, unless they are to be upheld on the *Page 185 ground that a judge holding over under such circumstances is to be regarded as an officer de facto." The conclusion was reached, after reviewing the authorities on the subject, that no other person having been appointed judge in his stead, he was a justice de facto. In Sheehan's Case, 122 Mass. Rep. 445, the court, in dealing with a similar state of facts, said: "The petitioner, in denying the jurisdiction of the police court in Lynn. rests his claim to be discharged upon the qualification of Mr. Hawkes (who, as special justice of that court, passed the sentence and ordered the commitment) by reason of the 8th Article of Amendment to the Constitution, which declares that no judge of any court of this commonwealth (except the court of sessions) shall at the same time have a seat in the Senate or House of Representatives. But if Mr. Hawkes, upon taking his seat in the House of Representatives, ceased to be a justice de jure, he was, by color of the commission which he still assumed to hold and act under, having the usual signs of judicial office — sitting in the court, using its seal, and attended by its clerk — and no other person having been appointed in his stead, a justice de facto." See also Mechem on Public Officers, Sec. 329.
Two persons can not, at the same time, be in the actual occupation and exercise of an office for which the law provides only one incumbent. Thus an officer de jure and an officer de facto can not be in possession of the same office at the same time, nor can two different officers de facto be in an office for which the law provides only one incumbent. Cyclopedia of Law and Procedure, Vol. 29, p. 1391; Mechem on Public Officers, Secs. 322 and 323.
The court charged the jury on the law of circumstantial evidence as follows:
"So far as this case rests upon circumstantial evidence, you are instructed that to warrant a conviction upon circumstantial evidence the circumstances must not only be consistent with the guilt of the accused but inconsistent with any other reasonable hypothesis or conclusion. The circumstances relied upon must be consistent with each other and with the facts intended to be established, and when taken altogether must lead to a satisfactory conclusion, and leave the mind without a reasonable doubt as to the guilt of the accused. But when the evidence is in part circumstantial and in part direct, and taken altogether leaves no reasonable doubt of the guilt of the accused he should be convicted, otherwise you shall acquit." *Page 186
A number of exceptions were presented to this charge, among them being that it had the effect of carrying the inference to the jury that the case rests partly upon circumstantial evidence and partly upon direct evidence. As we understand the record, the case rests wholly upon circumstantial evidence. The main fact to be proved was the appropriation of the money in question by appellant. The only statement appellant appears to have made relative to the matter was that he told one of the state's witnesses that he "guessed" the money went to his personal account. We do not understand such statement to be a specific admission of the appropriation of the money. It was equivocal in nature. Branch's Anno. P. C., Sec. 2478; Rollins v. State, 203 S.W. 355. There being no direct evidence of the appropriation of the city's property by appellant, the case rests wholly upon circumstantial evidence. It, therefore, follows that the charge complained of was error. Attention is called to the fact that the charge is deficient in failing to instruct the jury that each fact necessary to establish the guilt of the accused must be proven by the evidence beyond a reasonable doubt. The charge under consideration here is practically a verbatim copy of the charge in the case of Pabst et ux. vs. State, 259 S.W. 577. The facts in that case showing that the case rested wholly upon circumstantial evidence, the charge was held erroneous for the reason that it carried the inference to the jury that the case rested partly upon circumstantial evidence and partly upon direct evidence.
We do not deem it necessary to discuss the other questions presented by appellant.
For the error mentioned, the judgment is reversed and the cause remanded.
Reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.
ON MOTION FOR REHEARING BY STATE AND APPELLANT.